The U.S. Supreme Court surprised many today with a landmark 6-3 ruling, written by Trump appointee Neil Gorsuch, stating that people cannot be fired from their jobs because of their sexual orientation or gender identity. Yet last Friday, the Trump administration finalized a rule that says health care anti-discrimination protections don’t cover discrimination based on LGBTQ identities.
Good News
The Supreme Court ruling came in response to three cases, two involving gay men, Gerald Bostock and David Zarda, who were fired after they were outed to their employers, and one involving a transgender woman, Aimee Stephens, who was fired after informing her employer of her gender transition. Zarda and Stephens are now deceased, but their legacy lives on. The plaintiffs and their lawyers argued that Title VII of the Civil Rights Act, which prohibits discrimination based on sex, also necessarily prohibits discrimination based on sexual orientation and gender identity.
The employers in the cases, along with the Trump administration, had tried to argue that because Title VII does not explicitly include sexual orientation and gender identity, it does not cover them. The court majority disagreed. Gorsuch wrote unequivocally:
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
He added:
An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
Gorsuch may seem an unlikely person to have written the opinion, but he also couched it in fairly conservative terms, noting:
At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings…. All that the statute’s plain terms suggest, this Court’s cases have already confirmed…. However framed, the employer’s logic impermissibly seeks to displace the plain meaning of the law in favor of something lying beyond it.
Justices Samuel Alito, Brett Kavanaugh, and Clarence Thomas dissented.
This is a milestone ruling that should have a huge positive impact on all LGBTQ people in this country, who no longer need fear that they will be fired because of their LGBTQ identities. For those of us who are parents, it will help secure our ability to provide for our children. And since health insurance is tied to employment for so many of us, it will help us care for our loved ones’ health as well.
Bad News
And yet….
The Obama administration in 2016 had issued rules stating that Section 1557 of the Affordable Care Act, which prohibits discrimination “based on sex,” covers discrimination based on gender identity and sex stereotypes. A rule finalized Friday by Trump’s Department of Health and Human Services (HHS), however, says that it doesn’t. Transgender people are also specifically targeted—as HHS explains, “HHS will enforce Section 1557 by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.” That effectively negates any recognition of transgender identities.
As Lambda Legal notes, too, this rule will come down hard not only on trans people, but also people of color across the LGBTQ spectrum, “who already face elevated rates of discrimination in health care settings.”
Lambda asserts, however, that HHS’ new rule “does not and cannot change the law, but does cause confusion” because “court after court has affirmed that the law, which prohibits discrimination on the basis of sex, protects LGBTQ patients.” Lambda’s Senior Attorney and Health Care Strategist Omar Gonzalez-Pagan called the rule “a tragically failed public health policy and just flat out illegal.” And a federal lawsuit brought last January by GLAD on behalf of a transgender man denied coverage for gender-affirming care will challenge the rule directly.
Julianna S. Gonen, federal policy director at the National Center for Lesbian Rights (NCLR), offers this reassurance:
LGBTQ people should know that despite this mean-spirited move by the Trump administration, the Affordable Care Act’s underlying guarantee of health care access free from discrimination remains in place. While the federal government won’t help you, it also can’t stop you from going to court to secure your rights if that’s what it takes. NCLR stands ready to assist anyone who has suffered mistreatment by a health care provider or health insurance company simply for being who they are.
Does the Supreme Court’s ruling in the employment case give any indication of how it would rule if cases challenging the new health care rule make their way to them? That’s a question for the lawyers, and one I’m sure they’ll address in the coming days. LGBTQ legal and advocacy organizations are, however, urging that we must continue our push for the Equality Act, which adds clear protections against discrimination based on sex, sexual orientation, or gender identity in public accommodations and federally funded programs including healthcare, housing, and education. Here’s how you can help. Let’s celebrate the employment victory and then get back to work.