Supreme Court's LGBTQ Decision Spurs Legislation, Lawsuits

Monday's Supreme Court ruling banning workplace discrimination against gay and transgender employees is reviving congressional interest in moving sweeping legislation and will shape legal battles over healthcare access for years to come. 

The ruling has prompted a number of organizations and members of Congress to renew their campaign for passage of the Equality Act (HR 5), which would codify the court’s ground-breaking decision to prohibit employers from discriminating against workers on the basis of their sexual orientation or gender identity under Title VII of the Civil Rights Act of 1964. The bill would also extend these and other protections to numerous other federal laws.

A joint letter this week from nearly half of the US Senate to Majority Leader Mitch McConnell, R-KY, urges an immediate vote on the bill. The measure cleared the House last summer but currently remains in limbo in the Republican-controlled Senate and seems unlikely to pass. Prospects for the legislation could brighten next year if Democrats win the White House and control of the Senate in November, though Senate approval would still be far from assured.

Competing legislation introduced by House Republicans, the Fairness for All Act (HR 5331) would add LGBTQ protections to federal anti-discrimination law while preserving exemptions for religious organizations and certain small businesses whose owners are religious. Offered as a compromise, the bill has been criticized by social conservatives for going too far and by LGBTQ rights advocates for not going far enough.

The House-passed Equality Act would forbid employers from using the Religious Freedom Restoration Act of 1993 (RFRA) as a defense. Supreme Court Justice Neil Gorsuch, writing for the majority on Monday, noted that the court was not addressing a number of issues in the ruling and signaled that RFRA could affect Title VII LGBTQ employee protections in certain cases if they clashed with an employer’s religious convictions.

“[H]ow these doctrines protecting religious liberty interact with Title VII are questions for future cases . . .” Gorsuch wrote.

Conservative Justice Samuel Alito in his dissent (joined by Justice Clarence Thomas) also foreshadowed that the majority opinion could intensify legal battles over when employers and insurers must cover and doctors must provide gender affirmation care. These situations could present "difficult religious liberty issues" for those with strongly held beliefs, Alito wrote.

The Supreme Court’s ruling is also set to inflame the legal fight over a final Affordable Care Act Section 1557 regulation issued by the Trump Administration last Friday that rolls back prior agency rules protecting transgender individuals against discrimination by health plans and medical providers. The ACA established broad civil rights protections in health care, barring discrimination based on race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance.

The Obama administration interpreted the provision about sex discrimination to include discrimination on the basis of “gender identity.” Under the original 2016 rule, health care providers and insurers receiving federal funds would have been required to provide and cover medically appropriate treatment for transgender patients. The Obama rule has been tied up in litigation for several years, and the Trump administration has declined to enforce it, citing a Texas federal district court ruling (Franciscan Alliance v. Burwell, No. 7:16-CV-108). 

The ACLU and other organizations had already vowed to sue the Trump administration over its new rule eliminating transgender protections, and they're likely to seize on Monday's decision to build their case.

Geoff Manville
by Geoff Manville

Principal, Mercer’s Law & Policy Group

Katharine Marshall
by Katharine Marshall

Principal, Mercer’s Law & Policy Group

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