The Supreme Court has ruled that LGBTQ people cannot be fired because of their sexual orientation or because they are transgender as a matter of federal law, affirming legal protections from job discrimination for millions of people. Here’s what today’s ruling means for the LGBTQ community, employers, and Congress’ next steps.

What did the Supreme Court’s decision say?

The Supreme Court ruled that the federal law prohibiting sex discrimination in the workplace (Title VII of the Civil Rights Act of 1964), protects people from discrimination for being LGBTQ. This decision follows decades of lower court cases and agency decisions holding that such discrimination is unlawful sex discrimination.

On April 22, the Supreme Court announced it would take up three cases that ask whether or not to roll back protections for LGBTQ people under the Civil Rights Act’s prohibitions on sex discrimination. The ACLU is counsel in two of the cases:R.G. & G.R. Harris Funeral Homes v. EEOC (Aimee Stephens)Altitude Express v. Zarda (Donald Zarda)

What does this decision mean for LGBTQ workers?

Title VII covers employees in workplaces with 15 or more employees. In every state across the country, it is now unlawful to fire someone just for being LGBTQ. Other types of anti-LGBTQ workplace discrimination, like harassment and failure to hire, are also illegal. In addition, state or local protections still apply. 

What about religiously-affiliated employers?

Title VII applies to religiously-affiliated employers. There are some exemptions, including for ministers or other individuals whose job involves teaching or leading the faith. But in general, it applies to most job positions.

How will this impact my rights in school, health care, or housing?

Federal law also prohibits sex discrimination in housing, healthcare, education and credit. The reasoning from this Supreme Court decision should mean that it is also unlawful to discriminate against LGBTQ people in those contexts. With respect to healthcare, these protections in law override the anti-trans regulations recently issued by the Trump administration under Section 1557 of the Affordable Care Act.

What more do we need to do?

While federal law now offers many protections nationwide, it does not protect LGBTQ people in some important areas of life, such as in businesses open to the public, and federally-funded programs. And the law has some serious gaps in protections for all of us. Especially in this moment, updating the law to address modern forms of discrimination is critical.

We can seize on the momentum of this victory and pass the Equality Act now. The House of Representatives passed this critical legislation in May 2019. Urge your Senators to move this bill forward and ensure that LGBTQ are fully protected by our civil rights laws.

We also must continue to rally in the streets and in all aspects of life to defend Black trans people from deadly violence. In doing this work, we must follow the leadership of Black trans people.

What if I still experience discrimination because I’m LGBTQ?

Contact a lawyer, or a legal organization like the ACLU.  We may be able to help.

Politicians are attacking the rights of transgender people’s access to public spaces, basic services, educational institutions, and ultimately compromising the ability of trans people to survive.

Rose Saxe, Deputy Director, LGBT & HIV Project, ACLU

During the COVID-19 pandemic, jails and prisons have become infection hot spots due to notoriously unhygienic conditions and the inability to socially distance. Overcrowded facilities — a symptom of our longstanding national addiction to mass incarceration — are creating an unconstitutional health crisis. Advocates are calling upon judges across the country to release medically vulnerable people from prison and jails. But despite acknowledgment of the urgency from Attorney General William Barr, state officials, and judges, very little has actually been done to release people from prisons in particular.
 
While advocates have succeeded in securing the release of some people, particularly from jails, many judges have dismissed release as a viable option for people accused or convicted of violent charges. “Many of [the incarcerated people] are violent offenders,” wrote District Judge Robert Dow Jr. in a recent opinion, in a case challenging dangerous conditions in Illinois Department of Corrections’ facilities. “Compelling a process to potentially release thousands of inmates on an expedited basis could pose a serious threat to public safety and welfare … The question is not simply what is best for the inmates — the public has vital interests at stake, too.”
 
The message behind this and similar rulings is that the rights and safety of incarcerated people are secondary to the public’s comfort and safety during a pandemic, particularly when it comes to incarcerated people accused or convicted of violent charges. Even if the conditions inside prisons and jails indisputably endanger the lives of those incarcerated, these rulings justify their continued incarceration by alleging their release is too dangerous for the community. While concerns for public safety are understandable, in this instance they are unfounded. This is a cowardly and dangerous position, which ultimately puts many more lives at risk.
 
First, the problems courts are imagining with mass release just don’t exist when you look at the data. The people we’re asking judges to release are either elderly or have serious medical conditions. A subgroup of these people are in for “violent” offenses, which can range from murder to more benign actions like failing a urine test repeatedly. Because these people have been incarcerated for such a long time, much of their sentences have already been served. Further, data shows that most people age out of “violent crime” and older people are least likely to re-offend, making draconian sentences unnecessary and counterproductive, even in non-pandemic times.  
 
For people released pretrial on felony charges, less than two percent are ever re-arrested for a violent felony while awaiting trial. There is simply no statistically significant evidence that the medically vulnerable jail and prison population poses a safety or flight risk. The risk of incarcerated people catching COVID-19 and getting severely ill or dying, on the other hand, is quite high and has been well documented.
 
Second, it’s crucial to remember that people accused or convicted of violent crimes are just that: people. They have the same inalienable rights that all human beings are entitled to. Advocates should not have to respond with “the risks are not that bad” arguments. The fearmongering and repeated cries for law and order are the same rhetoric that created the mass incarceration crisis in the first place. If we are to truly address it, and prevent senseless, preventable death from this pandemic, we must go beyond advocating for nonviolent, low-level offenders.
 
Unfortunately, this necessary work is undermined by the fact that many criminal justice reform efforts focus on reducing punishments for low-level crimes, and avoid addressing more serious charges. For example, when picking plaintiffs to represent in a class action, impact litigators — including those at the ACLU — often avoid choosing clients with violent charges or convictions so that conservative judges will be more comfortable granting relief.  
 
When we design our arguments to appeal to the “tough on crime” narrative, we reinforce the idea that people accused or convicted of violent crimes are somehow less deserving of mercy. We risk building reforms around an exclusionary narrative that may hurt the movement in the long run and make it more difficult to go back later and seek justice for those we left behind. Sometimes, an incremental approach is necessary to get judges or the public more comfortable with alternatives to imprisonment. But until we stop relying on caging people as a response to violence, the U.S. will continue to have the highest incarceration rate in the world.
 
We need to challenge the “law and order” rhetoric that drove mass incarceration in the first place. This starts by unpacking how we define concepts like “danger,” “criminal,” and “violence.” Many studies have shown that Black men receive harsher charges, especially when the victim is white. This means that what society chooses to prosecute as violent is political and heavily influenced by race. Standard definitions of what and who we consider dangerous are not natural or self-evident; they are made.
 
For medically vulnerable people in jails and prisons, the courts’ concept of danger is irreparably undermining both health and safety by putting them, prison staff, and the general public at risk. That’s why the ACLU is asking the courts to release those most in harms’ way from infection. Judges do not have to overturn someone’s sentence or free them without obligations prior to trial. For people serving sentences, judges can let them continue to serve their time in home confinement or another appropriate setting until the pandemic has passed. For people awaiting trial, judges can order reporting requirements or more restrictive measures like home confinement.
 
In either case, underlying allegations or offenses should not guide courts’ decisions on how to protect the public. The burden has to be on the government to show with compelling evidence that someone is a credible threat of flight or violence, so much so that this threat outweighs the risk of severe illness or death that comes with continued incarceration.
 
Fortunately, some courts have bucked the trend and ordered the government to prioritize medically vulnerable people for review for home confinement, including those whose primary or prior offense was classified as violent. But this is not enough. More judges need to reject the unsubstantiated and racially charged cries for harsh punishment. Further, communities must demand that other actors — law enforcement, governors, and prosecutors — expand their vision beyond the “low hanging fruit” of reforms that prioritize the rights of a few, while leaving many others behind. Genuine reform will require us all to rethink how we address serious crimes and question whether incarceration is the best solution, rather than a more holistic economic and political approach.
 
April Rodriguez, Paralegal, ACLU Criminal Law Reform Project

In a landmark win for LGBTQ people, the Supreme Court today ruled that firing employees because of their sexual orientation or gender identity is sex discrimination that violates federal law. Today’s decision clarifies for the first time that LGBTQ people are protected from employment discrimination from coast to coast, including in states and cities that have no express protection for LGBTQ people in their own laws.  

While this ruling is a groundbreaking advance for LGBTQ people, there are still significant gaps in federal civil rights law that Congress must fill by passing the Equality Act. 

Today’s ruling came in three cases raising related issues. Harris Funeral Homes, Inc. v. EEOC and Aimee Stephens, involved Aimee Stephens, who worked for six years as a funeral director at a funeral home in Detroit. Her boss knew her as a man, but Aimee knew since she was little that she was female. After decades of hiding who she really was, Aimee realized she had to come out to the world as her true self or she couldn’t go on living. Gathering enormous courage, Aimee told her co-workers and her boss that she was a woman. Her co-workers didn’t have a problem, but her boss fired her.  

Don Zarda was the plaintiff in another of the cases decided today, Altitude Express, Inc. v. Zarda. Don was a sky diver who found his dream job teaching sky diving on Long Island, New York. He loved introducing others to the sport. Don often took customers on tandem jumps, where they are strapped to him shoulder-to-shoulder and hip-to-hip before they jump from the plane. While preparing for a jump, Don told a female customer that he was gay in an effort to make her more comfortable with how close they were physically. He thought nothing of the remark, but his boss later fired him for sharing “inappropriate information” with a customer. Heterosexual people don’t get fired for telling people they’re straight, so Don understood this was discrimination.  

The third case was brought by Gerald Bostock, who was fired from his job as a social worker for at-risk youth after his employer learned he was gay.  

All three workers sued, asserting that it was sex discrimination to fire them for being gay or transgender. The Supreme Court agreed, holding that “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Indeed, it’s clear that each employee’s sex was central to the reason they were fired. If Don Zarda or Gerald Bostock had been women attracted to men, instead of men attracted to men, they wouldn’t have been fired. And there is no way to understand Harris Funeral Homes’ decision to fire Aimee without talking about her sex and her decision to transition her gender.  What else could this be other than a decision based on her sex?  

But even with this victory, our work is not done. Today’s decision should mean that LGBTQ people are protected from discrimination not only in employment, but in every context under federal law where sex discrimination is prohibited. In addition to employment, federal laws against sex discrimination cover housing, education, health care, jury service, and credit.  But there are important contexts where sex discrimination is still legal under federal law: businesses open to the public and recipients of federal grants, like soup kitchens and drug treatment programs. The Equality Act would plug those holes and protect LGBTQ people as well as all women from these kinds of discrimination. It would also update the range of businesses covered under the federal civil rights law so that forms of discrimination like racial profiling in stores and by ride-sharing services become illegal.  

Tragically, neither Aimee nor Don lived to see the decisions from the Supreme Court in their landmark cases. Aimee died last month from kidney failure that was exacerbated by her loss of health insurance when she was fired because she was transgender. Don died several years ago in a sky-diving accident.  

Today is not just a day to celebrate progress for LGBTQ people, it’s a day to thank Aimee, Don, and Gerald for putting themselves forward through these cases in order to help millions of people all across the country. And it’s a day to thank Aimee and Don’s families for continuing their cases in their honor. Without heroes like them, the protections in our legal system would not work.  

It’s also a day to tell Congress to finish this work, update the Civil Rights Act, and ensure comprehensive anti-discrimination protections for all of us nationwide.

James Esseks, Director, ACLU Lesbian Gay Bisexual Transgender & HIV Project