The Atlanta Journal-Constitution
Despite court win, LGBTQ advocates brace for more fights in Georgia
Some fear potential 2021 ‘religious liberty’ battle in Legislature.
For weeks, Rachel Mosby barely slept on Sunday nights.
She knew that any Monday in June could bring a decision that could change her life. Any Monday, the U.S. Supreme Court could empower her to be herself.
When the calls started coming nonstop on the morning of June 15, she said, she didn’t just think about how the high court’s decision would weigh on her own workplace discrimination lawsuit. She said she thought of all the gay and transgender people who had lost their jobs over the years after they started living as their authentic selves.
The justices’ 6-3 ruling — that employers cannot fire LGBTQ workers because of their sexual orientation or gender identity — was an unexpected decision that, for the first time, extended workplace protections to transgender people like Mosby.
“I was in disbelief at first and then pretty ecstatic,” said Mosby, who filed a lawsuit after she was ousted from her job as fire chief in the tiny town of Byron, in the heart of Middle Georgia’s peach country. “There’s a lot of validation that goes with that, a recognition for expressing who we are.”
Legal analysts say the sweeping ruling might give a big legal lift to Mosby’s suit, which was filed in the U.S. District Court for Georgia’s Middle District, and others like it.
But even as gay rights advocates celebrate the victory, many say more barriers stand in the way of full equality for LGBTQ Georgians. Some raised warnings about the potential for a “religious liberty” fight returning to the Legislature next year.
“Ultimately, the best answer is to have legislation in place that explicitly protects members of the LGBT community,” said Jeff Graham, executive director of Georgia Equality. “That’s the best way to ensure that there are no gaps, that we don’t see changes of opinion as the makeup of the Supreme Court may change in the future.”
Local actions
Over the last two decades, as the gay rights movement made major strides across the U.S., Georgia stayed behind the curve.
It was one of 13 states that still had a same-sex marriage ban in 2015, when the Supreme Court required states to recognize such unions.
Since then, Georgia has remained one of only three states without a broad, state-level civil rights law protecting employees from discrimination based on factors like sex, race, religion or national origin, according to the National Conference of State Legislators. The state does outlaw discrimination based on disability and age.
Georgia is one of five states that does not explicitly ban discrimination in public accommodations like restaurants and hotels. And until last month, when it passed hate crimes legislation, the Legislature had never approved any sort of protections for the state’s LGBTQ population.
Eight municipalities around metro Atlanta have acted in recent years to fill the void, passing city ordinances to end bias in sectors such as employment, housing, social services and public accommodations.
The most recent was East Point. Its City Council unanimously approved an anti-discrimination policy hours after the Supreme Court ruled on the matter last month.
“Advancing equity, inclusion and social justice is the cornerstone of who we are as a community and serves as our North Star,” said Mayor Deana Holiday Ingraham. “As we continue forward on our journey, this ordinance is one more people-focused step that demonstrates we live our values and walk it like we talk it.”
Other cities around the state, from Columbus to Tucker, are considering ordinances of their own.
One of the biggest overhauls is being mulled in Savannah, where Mayor Van Johnson recently appointed a task force to examine local policies and determine where there’s room for more inclusivity.
He’s committed to signing off on a nondiscrimination ordinance “that has teeth” by the end of the year, he said. Johnson also has directed the task force, dubbed Proud Savannah, to mull more symbolic actions, from celebrating World AIDS Day and Transgender Day of Remembrance to hoisting a rainbow flag above City Hall.
“As the citizens begin to see more LGBT-affirming literature, flags and things that show us for who we are, then the culture of that (city) changes, and we can change the legislation with ease,” said Candace Hardnett, senior pastor of Savannah’s Agape Empowerment Ministries and a member of the task force.
Legislative fights
LGBTQ advocates are still encouraging localities to take matters into their own hands, but they say state and ultimately Congress will need to step in to enact more uniform protections.
“Georgia consistently ranks among top states in which to do business. But if we don’t have that consistency and those protections for all folks, from a hate crimes perspective, to nondiscrimination protections overall, to health access and safety, then we are not going to attract and retain top-tier talent,” said Chris Lugo, executive director of the OUT Georgia Business Alliance.
The holy grail for many gay rights proponents is for Congress to pass the Equality Act, which would codify federal civil rights protections for the LGBTQ community. The Democratic-controlled House cleared the legislation last summer — with Georgia’s delegation voting along strict party lines — but the proposal has languished in the Republican-led Senate.
That’s brought increased attention to the November elections, when Democrats are hoping to wrestle control of the White House, U.S. Senate and Georgia Statehouse from GOP control.
For decades, LGBTQ groups have been on the defensive under the Gold Dome.
One of their biggest fights came in early 2016, when both chambers of the General Assembly passed a “religious liberty” bill that would have allowed faithbased businesses to deny services to those who violated an
owner’s “sincerely held religious belief.” It also would have preserved their right to fire employees who weren’t in accord with those beliefs. Opponents said the measure amounted to legalized discrimination, and then-Gov. Nathan Deal ultimately vetoed it, saying it didn’t reflect Georgia’s welcoming image.
The measure has been reintroduced in subsequent legislative sessions but hasn’t advanced far, and GOP leaders have since avoided new fights over gay rights. This year, the Legislature didn’t act on bills that would have allowed adoption agencies to turn away prospective LGBTQ parents and introduced criminal penalties for doctors helping children transition genders.
Still, some advocates worry that, when the General Assembly reconvenes in 2021, such legislation
could be resurrected by religious conservatives energized by the recent Supreme Court ruling.
State Rep. Philip Singleton suggested that could very well be the case.
The Sharpsburg Republican authored a bill last year that would have required transgender athletes to compete in sporting events aligning with the gender on their birth certificates, which was bitterly fought by Georgia Equality and others. Singleton said he’s “sure there will be several pieces of legislation next year to make sure that, while we respect the freedoms and rights of every Georgian, we do not inadvertently trample the rights of our women, or those who want to practice their God given right to worship how they choose.” Opponents of bills expanding protections for transgender people have raised safety concerns about women sharing locker rooms with transgender women and questioned the fairness of women’s sporting events if transgender women can compete.
Mike Griffin, a lobbyist for the Georgia Baptist Mission Board, said his group does not agree with the Supreme Court’s ruling on workplace discrimination. He also said that the Legislature needs to pass a state-level version of the federal Religious Freedom Restoration Act, which President Bill Clinton signed in 1993, to protect people with deeply held religious beliefs.
“While there should be no mistreatment of any human beings, we do believe that churches and religious institutions have the right and responsibility to employ those who will represent them in accordance with their doctrinal beliefs,” Griffin said. “This is a First Amendment right.”
Legal challenges
In the short term, the biggest changes are likely to be felt in the courts.
Employment lawyers say they expect a wave of new workplace bias cases to be filed by gay and transgender people who, for years, were turned away by many attorneys.
Because Georgia is an “employment at-will” state, lawsuits are often the only legal avenue available to workers who believe they’ve been discriminated against, said Joyce Kitchens, an Atlanta-based employment lawyer.
The new Supreme Court case expands the definition of what’s considered discrimination under the 1964 Civil Rights Act.
Attorneys expect legal battles to be fought across the nation over how broadly the ruling can be applied, from federal housing programs to food banks, credit and public accommodations, as well as the types of exemptions afforded to religious organizations and smaller businesses.
The ruling also could have implications for several suits currently being argued in front of Georgia judges, including a major federal case related to bathroom access for transgender high school students. The case’s lawyers were recently asked to file new briefs detailing how the Supreme Court ruling will affect their arguments.
For Gerald Bostock, the Doraville man whom Supreme Court justices ruled in favor of last month, his discrimination case against Clayton County now goes back before a federal district court. The suit, in which Bostock alleges he was fired from his job as coordinator of the county’s Court Appointed Special Advocate program because he is gay, was dismissed by that court not long after it was filed in 2016.
“We look forward to going ahead with Gerald’s case now that we have a decision affirming that we do indeed have a cause of action and a right and remedy under the law to pursue,” said Bostock’s lawyer Tom Mew.
Steven Teske, Clayton County Juvenile Court’s chief judge, recently told The Atlanta Journal-Constitution that a 2013 audit, which found that thousands of county dollars were improperly spent under Bostock’s watch, was the reason for Bostock’s firing, not his sexual orientation.
And then there’s Mosby, who said she was terminated in June 2019 as Byron’s fire chief not long after she began coming to work as a woman in early 2018. Mosby had held the job for more than a decade and started medically transitioning in 2016.
Mosby filed a federal lawsuit this spring alleging that she was fired due to the city’s “discriminatory animus based on her sex, gender identity, and notions of sex stereotyping.”
Byron Mayor Michael L. Chidester said the city does not comment on ongoing litigation. But in Mosby’s termination letter, City Administrator Derick Hayes cited poor job performance, including Mosby’s failure to maintain a fire investigator certification and to release new business licenses for approval in a timely manner, and does not mention her gender transition.
Mosby, who now lives in Decatur, said in a recent interview that the new Supreme Court ruling “doesn’t erase implicit bias” and systematic discrimination against LGBTQ people. But she doesn’t see how it can hurt her own case.
“Certainly, a favorable opinion does put great wind in our sails,” she said.
‘Georgia consistently ranks among top states in which to do business. But if we don’t have that consistency and those protections for all folks, from a hate crimes perspective, to nondiscrimination protections overall, to health access and safety, then we are not going to attract and retain top-tier talent.’ Chris Lugo, executive director of the OUT Georgia Business Alliance