Two federal agencies are currently in open dispute over whether the 1964 Civil Rights Act protects LGBT Americans from discrimination. In recent years, the Equal Employment Opportunity Commission has said it does. In July, the Justice Department, helmed by Attorney General Jeff Sessions, declared that it doesn’t.
That discrepancy is already causing confusion for the 30 U.S. states that haven’t enshrined sexual orientation and gender identity as protected categories in non-discrimination statutes covering both the public and private sectors.
On Tuesday, I emailed Florida Governor Rick Scott’s office for a story I’m working on, to ask whether the DOJ’s new stance had changed anything since June, when I reported on the state’s stalled progress on LGBT rights a year after the Pulse massacre.
“In accordance with federal guidelines, Florida state agencies do not discriminate on the basis of sexual orientation,” a spokesperson for Scott wrote back, linking to two EEOC webpages, one reproducing the language of Title VII and the other reflecting the agency’s interpretation of it.
But when I pointed out that the DOJ has explicitly rejected that interpretation, the spokesperson said only that “the guidelines Florida agencies rely on [have] not changed,” but declined to address the potential impact of the DOJ’s new position. A spokesperson for Florida Attorney General Pam Bondi did not respond to multiple requests for comment about how the state intends to handle LGBT discrimination claims.
The lack of clarity is Florida’s–and particularly Scott’s–own fault. The governor has refused to back a bipartisan bill with overwhelming support from the business community to enact LGBT non-discrimination protections statewide. But Congress is also to blame. For over 20 years, legislators have been trying to amend Title VII to expressly prohibit discrimination against gay and trans Americans nationwide. Until it does, that community will remain vulnerable to callous or bigoted employers, governors, attorneys general, and even presidents.