There have been some big strides for LGBT rights in recent years. For example, you can now get married in all 50 U.S. states regardless of your sexual orientation or gender identity. But we haven't come as far as it may seem. In fact, you can still get fired from your job for being gay or transgender in 28 states.
In 2013, more than one in five LGBT Americans told Pew researchers that they’d been mistreated by an employer because of their sexual orientation or gender identity. Despite (and arguably because of) gay marriage becoming a national right since then, a growing number of legislatures has moved to enshrine many forms of employment discrimination against LGBT workers. Activists are pushing back. Here's a look at the latest battlefront in the LGBT rights movement.
Shifting Battle Lines
Only 19 states and Washington, D.C., have passed laws preventing LGBT Americans from being discriminated against by employers. Three others protect employees on the basis of sexual orientation but not gender identity.
Even before the Supreme Court established a constitutional right to same-sex marriage last summer, in Obergefell v. Hodges, LGBT activists were voicing concern that that victory could slow their progress fighting discrimination in other realms. In the seven months since, there’s been ample reason to justify that worry.
Among them is the flurry of measures aimed at granting a broad range of religious exemptions to individuals, companies, and public and private institutions from non-discrimination laws that are already on the books. Many are written expressly to limit some of its effects, namely in the workplace. Examples include two laws passed in Arkansas and Indiana (followed by a fierce backlash) ahead of last year’s Supreme Court ruling and the one now advancing in Georgia.
Advocates of such laws have relentlessly conjured images of religious bakers and florists compelled to serve same-sex couples. But from the point of view of LGBT workers, statewide non-discrimination laws are only as good as the exceptions to them.
According to a recent inventory by BuzzFeed, at least 105 new bills were introduced in the latest legislative session alone, more than twice the number of the previous year. These efforts have gained encouragement from the Supreme Court’s 2014 ruling in Burwell v. Hobby Lobby, which recognized the religious beliefs of for-profit companies. Further, 21 states already have a broad-based "religious freedom" law in place (many passed before Hobby Lobby), and 17 are considering legislation to adopt or modify one. That’s not to mention the measures that would grant religious exemptions in more specific issues like adoption law and student organizing. The American Civil Liberties Union, which tracks legislation impacting LGBT rights state by state, puts the total count higher, with 30 states where at least one type of religious-exemption bill is now pending.
Many other efforts aren’t framed in religious terms at all. The sheer number and variety of those make them difficult to categorize; some state legislatures are considering several bills simultaneously that would impact LGBT anti-discrimination statutes in one way or another, all without hinging on a church-state distinction. Certain measures would override local LGBT-friendly ordinances, while others would define sex and gender in ways that make life difficult for transgender people.
Employment Law Versus Public Opinion
One reason why so much of this remains unsettled is because Title VII of the Civil Rights Act, which was passed in 1964 and bars discrimination on the basis of "race, color, religion, sex, or national origin," doesn’t offer explicit protections for gender identity or sexual orientation. It’s only in the last half-century of case law that the act’s provisions have been interpreted as applying to LGBT Americans, and then in limited ways.
Title VII’s non-discrimination protections apply only to employers of at least 15 people, and as the Equal Employment Opportunity Commission notes (with surprising candor), "Figuring out whether or not an employer is covered can be complicated." For one thing, that 15-employee threshold can vary "depending on the type of employer (for example, whether the employer is a private company, a state or local government agency, a federal agency, an employment agency, or a labor union) and the kind of discrimination alleged." In general, you’d also need to have worked for your company for at least 20 weeks before filing a complaint with the EEOC.
So it isn't surprising that some are pushing for greater consistency. House Speaker Paul Ryan demurred last week on whether he’d bring a vote to the floor on the Equality Act, a non-discrimination bill that gained its first Republican co-sponsor in January.
Supported by Hillary Clinton, Bernie Sanders, a slate of companies including Facebook, Google, and Nike, but endorsed by none of the current GOP candidates, the law would extend federal civil-rights protections to LGBT Americans by amending the Civil Rights and Fair Housing Acts. A version is making its way through the Senate as well.
As all these laws—those expanding protections and those constricting them—march forward, there’s one thing that’s easy to lose sight of: Public acceptance of LGBT people is on the rise and has been for decades. The post-Obergefell legislative backlash, while real, runs counter to that trend. In 1977, according to Gallup, 56% of Americans believed gays should have equal rights in employment. By 2007, that number had leaped to 89%.
In a Reuters/Ipsos poll conducted just months before same-sex marriage was legalized, 55% of respondents agreed that an employer’s religious beliefs were no grounds for refusing to hire someone; just 27% said they were. And a Public Religion Research Institute study last year found majority support for LGBT non-discrimination laws across all major religious, political, and demographic groups. Even those opposed to same-sex marriage were divided on that question.
So in terms of public opinion, the winds on these issues are at LGBT activists’ backs. In the 2013 Pew survey, 57% of LGBT respondents said equal employment rights should be a "top priority," beating out same-sex marriage. With the latter now established law, its opponents are left to chip away at the margins. So far, they’ve had the most success doing that in the workplace. The question now is how long they can sustain it.