As Federal Courts Become More Hostile to LGBT Rights, Equality Act Passage Is Urgent
One of the three cases that will be reviewed by the U.S. Supreme Court is a New York case where the U.S. Court of Appeals for the Second Circuit ruled in favor of the estate of the late Donald Zarda, a skydiving instructor who was fired because he was gay.
May 20, 2019 at 11:15 AM
3 minute read
The House of Representatives last week passed the Equality Act, a sweeping bill that would add sexual orientation and gender identity to the list of all existing anti-discrimination measures in the United States Code. For the first time ever, a comprehensive LGBT civil rights bill received a vote on the floor in Congress. It passed the House on the same day that we celebrate the 65th anniversary of Brown v Board of Education.
In January, after 17 years of hard work, New York State finally enacted GENDA—a measure to protect transgender and gender non-conforming people from discrimination statewide. However, LGBT people in other states are still vulnerable to discrimination and lack recourse under the law. Only 22 states have clear laws barring discrimination based on sexual orientation. Transgender people lack these basic protections in a staggering 31 states.
There is an urgent need for explicit, nationwide protections for LGBT people.
The public stands with the LGBT community. Polls show that 70% of Americans support a comprehensive non-discrimination bill that provides protection on the basis of sexual orientation and gender identity. In addition, there is strong support for the Equality Act from the business community, with 160 major U.S. companies endorsing the legislation.
A growing number of federal courts across the country currently interpret workplace protections under federal law to bar discrimination against LGBT people, but other courts do not. The result is a patchwork of federal protections, not just in the workplace, but in other areas of public life.
In April, the U.S. Supreme Court announced it would review three cases that could have a massive impact on the rights and lives of LGBT people. Specifically, the court will decide whether the ban on employment discrimination “because of sex” under Title VII of the Civil Rights Act of 1964 can be interpreted to apply to claims of discrimination because of sexual orientation and gender identity.
One of the three cases is a New York case where the U.S. Court of Appeals for the Second Circuit ruled in favor of the estate of the late Donald Zarda, a skydiving instructor who was fired because he was gay. The full Second Circuit got it right. Everyone has the right to feel safe and protected at work. The Supreme Court should agree, but with Brett Kavanaugh now sitting in Justice Anthony Kennedy's seat, the outcome is more uncertain.
The momentum is headed towards justice under the law for LGBT people, and the stakes are high. Millions of LGBT people already rely on federal protections in employment and schools. A bad Supreme Court ruling would be disastrous. What's more, President Trump has already confirmed over 100 federal judges, and according to Lambda Legal, as many as 1/3 of them are anti-LGBT. In this climate, we cannot simply rely on winning in the courts.
The Equality Act would cement consistent application of nondiscrimination protections for LGBTQ people in employment, housing, credit, public accommodation, jury service and more. As the federal courts become more hostile to LGBT rights, we need legislative action.
The time for the Equality Act is now!
Eric Lesh is the executive director of LeGaL, the LGBT Bar Association of New York, and Kristen Browde is president of the board.
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