If there were any lingering doubts that President Donald Trump does not intend to be known as the champion of LGBT rights that Candidate Donald Trump was vowing himself to be this time last year, his administration put them to rest last month. In an unusual brief filed recently in a New York federal court, the Justice Department declared LGBT Americans to be unprotected by federal non-discrimination statutes that Obama officials had previously considered to cover them.
The move wasn’t so much a rewriting of law as a reversal in the interpretation of it. Despite decades of efforts, the 1964 Civil Rights Act has never been amended to explicitly include sexual orientation and gender identity under Title VII, whose language bars discrimination based on “race, color, religion, sex, or national origin.”
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Even before the Justice Department’s change in position last month, LGBT employees across the U.S. were subject to dramatically different employment protections depending on where they live, ranging from robust to virtually none at all. (Title VII’s protections, it should be noted, only cover workers at companies that employ 15 people or more.) Now that the Justice Department has clarified that it sees previous, more inclusive rulings by the Equal Employment Opportunity Commission as legally meritless, states that lack LGBT non-discrimination protections are left wondering which of those two federal agencies to abide by.
Nevertheless, Trump’s tenure in the White House hasn’t dramatically changed the patchwork legal landscape that existed before he took office. Since Fast Company last surveyed LGBT workplace protections in March 2016, that map is virtually unchanged.
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New York state recently added gender identity to its non-discrimination protections alongside sexual orientation (while Florida, despite experiencing a devastating mass shooting targeting a gay nightclub in Orlando last year, notably has not). Eleven states offer employment protections that cover public employees only, and five of them (Virginia, Ohio, Missouri, Arizona, and Alaska) address just sexual orientation, leaving trans employees without legal recourse.
Two states whose non-discrimination provisions affect private employers, Wisconsin and New Hampshire, likewise lack language on gender identity. The states that actually bar discrimination for both sexual orientation and gender identity in both the public and private sector are still in the minority: 20 do so, plus the District of Columbia.
The Election Impact
But despite the fact that it’s still legal for companies in 28 states to fire employees for being gay or transgender–and notwithstanding Trump’s manifest hostility to LGBT rights–there are signs this year that political winds are blowing over that map in a more inclusive direction.
“We haven’t seen any states change their state nondiscrimination laws since the November election,” Naomi Goldberg, Policy and Research director at the Movement Advancement Project, an LGBT advocacy group, points out–itself a significant development considering that some states have taken dramatic steps to curb reproductive rights since Trump’s win (with lawmakers in at least one instance explicitly citing his victory as their cue).
“However, a number of cities have passed nondiscrimination ordinances at the local level, including Jacksonville, Florida, and Akron, Ohio,” says Goldberg. And even though three states–Arkansas, Tennessee, and North Carolina–have passed laws barring the enactment or enforcement of local measures like these, similar efforts are proliferating across the country.
In addition, Goldberg continues, “several states passed other positive LGBT legislation during this recent legislative cycle, such as bans on harmful conversion therapy practices in Connecticut and Nevada and the addition of non-binary gender options on driver’s licenses in Oregon. Additionally, a number of hostile bills were defeated, including a bill in Texas that would have impacted employees by limiting restroom access for transgender people.”
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Advocates In Business
Selisse Berry, CEO of Out & Equal Workplace Advocates, notices a clear trend here, and she sees the business community as partly responsible for it. Not only are many companies adopting their own policies to protect LGBT employees, but some are actively lobbying lawmakers and courts to expand and defend LGBT rights as well. “In 1996, only 4% of Fortune 500 companies welcomed LGBT people with inclusive policies and protections,” Berry observes. “Today 96% of those companies do.”
Many of those companies have been more vocal about their support under Trump than they have in the past, says Goldberg. “When legislators in Texas pushed an anti-transgender bill into a special legislative session, for example, a coalition of businesses in the state spoke out.” That measure died with little fanfare earlier this month, reportedly in part because businesses including the NCAA and NFL came out forcefully against it.
Related: Five Ways The Trump Administration Can Help LGBT Workers (With Minimal Political Effort)
And because these highly publicized battles have now been fought before, companies are getting better at mounting a defense. Texas businesses, says Goldberg, “presented statistics that [the] anti-trans bill could cost the state $5.6 billion in lost economic investment. They relied on estimates based on the actual losses experienced by North Carolina’s economy following their anti-LGBT HB-2 bill.” As Goldberg puts it, “companies know what is best for business, and discrimination isn’t it.”
What’s more, Berry points out, “in committing to these safeguards, employers should recognize that they’re always defending more people than they actually know about.” Roughly half of U.S. employees still aren’t out at work, she explains, citing a 2014 Human Rights Campaign report, and adds that even in technology (a sector lately derided by some on the right as a bastion of liberal thought) LGBT workers are more likely to be bullied than their non-LGBT colleagues. According to a Kapor Center study released last spring, 64% of LGBT tech employees who’d been harassed at work said their experience led them to look for new jobs.
“Which is to say that U.S. employers still have a major stake in this issue,” says Berry. “When LGBT workers feel unsafe or unwelcome, they become part of a hiring and retention problem that many corporations already say is out of hand. Add that business problem to the obvious moral one,” she continues, “and you’ve got the makings of a powerful force for resisting the Trump Administration’s curtailment of LGBT rights.”
Catching Up With Public Opinion
Indeed, the current state-by-state picture of LGBT non-discrimination protections no longer reflects public opinion. Last March, a PRRI poll found that 70% of Americans back laws to protect LGBT people from discrimination in the workplace, housing, and public accommodations, compared with just 26% who don’t.
The president’s claims in 2016 to support LGBT Americans put him on the right side of history and public opinion. It’s his actions in 2017, which have since proved those claims hollow, that don’t.
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