Enforcement of LGBTQ rights case has been uneven

For Chris Sanders, June 15 changed everything.

That day, the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protected LGBTQ people against work discrimination.

“We would not be able to get a piece of legislation through our general assembly that does the same thing,” said Sanders, executive director of the Tennessee Equality Project, a statewide LGBTQ rights organization.

But though it was the final word for many, the landmark national ruling could be a hollow win for LGBTQ people facing workplace hostility, according to advocates. The Trump administration has been uneven in its enforcement of the Bostock v. Clayton decision. This imprecision could leave an estimated 3.6 million workers unclear on their rights when they are fired or denied job opportunities for being gay, bisexual, transgender or queer.

The Justice Department traditionally enforces new laws by issuing nonbinding guidance aimed at alerting the public and other agencies to their rights and responsibilities. Federal agencies such as the Department of Labor, the Equal Employment Opportunity Commission and the Department of Education then take those instructions and craft their own. But so far, the DOJ has not withdrawn guidance no longer in compliance with the law and issued a new one. The department did not respond to a request from The 19th to comment.

In 2017, the DOJ argued that Title VII, which bars discrimination on the basis of sex, does not cover gay or transgender people because Congress has not passed specific LGBTQ protections. The department submitted a brief to the Supreme Court last year arguing the same in the cases that ultimately secured LGBTQ workplace protections. Its 2017 memo regarding transgender workers has not been withdrawn.

“That memo should be rescinded immediately,” said LGBTQ law group Lambda Legal’s Omar Gonzalez-Pagan.

On July 16, Lambda Legal, the Human Rights Campaign, the National Women’s Law Center and other advocacy organizations sent a letter to Attorney General William Barr, urging him to direct agencies to release guidance on the law.

“The Department of Justice is not only appropriately positioned to coordinate implementation of the Bostock decision across the federal government, but has historically undertaken this role,” the letter said.

Other federal agencies could craft their own guidance without waiting for the Justice Department. The Labor Department issues annual posters alerting workers to their rights.

Edwin Nieves, a spokesman for the Department of Labor, expressed confusion over the suggestion that his agency would have a role in enforcing the law.

“Bostock v. Clayton County was a Supreme Court ruling which is DOJ,” Nieves said in an email.

The Equal Employment Opportunity Commission has issued its own guidance in the wake of the ruling, stating that a woman cannot be legally fired for being married to a woman if a man would not be fired for the same reason. The EEOC website also uses the example of a boss firing “an employee because that person was identified as male at birth, but uses feminine pronouns and identifies as a female.”

Pagan still wants other agencies to correct what he says is now incorrect guidance. He cites a series of rollbacks transgender protections under the Department of Education starting in 2017 that rest on the argument that sex discrimination excludes gender identity.

Democractic members of Congress say the Trump administration has hinged nearly all of its anti-LGBTQ policy on the claim that Title VII protections don’t include sexual orientation and gender identity.

On July 9, more than 100 House and Senate members called on President Donald Trump to direct federal agencies to “review of all regulations, executive orders and agency policies that implicate legal protections for LGBTQ individuals under federal civil rights laws.”

Data suggests that LGBTQ Americans have been particularly vulnerable to the pandemic. According to the Human Rights Campaign, one in five LGBTQ people lived in poverty as of 2018, and more than twice the number of LGBTQ people work in the particularly hard-hit restaurant industry (15%) as the general population (6%).

This story is published in partnership with The 19th, a nonprofit, nonpartisan newsroom reporting on gender, politics and policy.