The Supreme Court is kicking off its new term this Tuesday with three monumental cases that could alter the direction of the LGBTQ rights movement. Altitude Express Inc. v. Zarda, Bostock v. Clayton County and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission each ask whether gay and transgender people should be protected from workplace discrimination under the Civil Rights Act of 1964. As these cases are the first regarding LGBTQ rights under a newly conservative Supreme Court, the outcome will not only determine what millions of Americans endure in the workplace, but also the court’s precedent for other civil rights cases going forward.
Unlike an earlier LGBTQ rights ruling, this trio of cases will strictly be decided on how the justices interpret the Civil Rights Act rather than the Constitution. The Civil Rights Act bars employment discrimination on the basis of sex; the plaintiffs in these upcoming cases argue that discrimination on the basis of sexual orientation is indistinguishable from discrimination on the basis of sex. However, several judges have not been convinced by this argument. Judge Diane Sykes on the Seventh Circuit ruled that sex in the Civil Rights Act of 1964 referred to nothing more than the two biological sexes, and that discrimination based on sexual orientation stems from bias that is fundamentally different than the type that produces sex discrimination. With Justice Anthony Kennedy — who penned Obergefell v. Hodges, the landmark case that established the right for same-sex couples to marry — off the court, it is highly improbable that the pivotal fifth vote to protect LGBTQ rights still exists. While the court’s decisions will be a product of its ideological leaning, these cases also highlight larger issues with the LGBTQ rights movement as a whole.
The LGBTQ rights movement was born during an era of anti-establishment politics, and it often co-opted radical language and ideology from concurrent leftist movements. It was only once the movement shed its more radical politics in favor of positions and policy that were deemed more palatable by the general public — such as the right to marry — that the fight for LGBTQ rights became more mainstream. There were many benefits to shifting strategies: marriage is a tangible form of state recognition that gives same-sex couples access to over 1,000 laws that benefit only married people. While people can clearly see same-sex couples denied the right to marry, it is much more difficult for people to grasp abstract ideas such as societal ostracization and the absence of protections. But as a consequence, the public face of the LGBTQ rights movement became single-issue and stopped emphasizing the struggle against other organized structures of identity-based discrimination.
Now we’re here, with the future of the LGBTQ rights movement on the line. Despite the massive consequences these decisions could have, some still argue that the American LGBTQ rights movement has essentially ended. A small study of same-sex couples found that the right to marry has made organizing for other struggles seem like less of a priority. Because of the LGBTQ movement’s heavy focus on same-sex marriage, when Obergefell was decided, many commentators said the fight for LGBTQ rights was no longer a priority.
While the right to marry gives many the right to express who they love, it says nothing about the right to express who they are. The trans community has been notably excluded from the benefits of the Supreme Court ruling, as well as from the LGBTQ community as a whole. An acknowledgement of the dangers the trans community face is especially important at a time when their rights are under attack by the Trump administration. Whether it be a rollback of protections against discrimination or the appointment of judges with anti-trans records, Trump has actively contributed to the erosion of trans rights. But this isn’t the only struggle that still needs to be fought.
Roughly half of Americans believe there are already federal laws in place that prohibit discrimination on the basis of sexual orientation; there aren’t. The Pew Research Center found that majorities of people in both political parties now hold that homosexuality should be accepted by society. As James Kirchick at the Brookings Institution, a public policy think tank, put it, “America is rapidly becoming a post-gay country,” and that modern concerns about homophobia are simply “hysteria.”
While public opinion may have shifted to be more accepting, many institutional barriers still exist to oppress LGBTQ people. Men who have had sex with other men in the last 12 months are still prohibited from giving blood. Seven states still retain laws that mandate an anti-LGBTQ curriculum in public schools. Antiquated sodomy laws are still used to discriminate against LGBTQ people. These three cases are a reminder that LGBTQ rights are still murky, and the legal landscape is still failing LGBTQ people across the U.S.
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A version of this article appeared in the Monday, Oct. 7, 2019 print edition. Email Emily Dai at [email protected]