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Possible Limits on Supreme Court’s LGBTQ Ruling

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Possible Limits on Supreme Court’s LGBTQ Ruling; Restrooms and Showers, Sports Teams, and Religious Views

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The Supreme Court's LGBTQ Ruling

WASHINGTON, D.C. (June 15, 2020) - Although many are hailing today's Supreme Court ruling that employers may not discriminate in hiring and firing employees based upon their sexual preferences (e.g., being homosexual) or sexual identity (e.g., being transgender), it does not provide all of the protections LGBTQ people are seeking, nor necessarily suggest that such additional protections will be provided in future court decisions, suggests public interest law professor John Banzhaf.

Many LGBTQ advocates have argued that persons must be able to use any restroom, locker room, or shower facility set aside for persons of their sexual identity, even if it is contrary to their anatomy; that M2F transgender people must be permitted to compete on female teams and in sports events limited to females; and that many of their desires must be accommodated even if they conflict with the strongly held religious beliefs of employers or of those who operate places of public accommodation.

But a reading of the reasoning of the majority opinion does not necessarily seem to lead inexorably to those conclusions, says Banzhaf, who has supported prohibiting discrimination on the basis of both sexual orientation and sexual identity.

The Court did not rule that "sex," as that term is used in the statute, includes - or is necessarily meant to cover - either sexual preference or sexual identity.

What it did say in that when a company fires an employee for conduct which would be tolerated if the employee were of a different gender (e.g., having sex with a female), that decision is based upon the sex of the employee (e.g. if it's OK for a male, but not OK for a female).

Firing An Employee Based On The Way They Dress

Similarly, when a company fires an employee for dressing in a manner which would be tolerated if the employee were of a different gender (e.g., wearing a dress and/or lipstick), that decision necessary is based upon the sex of the employee (e.g., if it's OK for a female but not for a male).

But, suggests Banzhaf, it is at least possible that the same logic and reasoning may not apply if at least some restrooms, locker rooms, or shower facilities are set aside for persons who do not have a penis, or if certain sports teams or sporting events are restricted to persons with a vagina.

This is not just speculation, notes Banzhaf, because the majority decision said exactly that:

"The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual 'because of such individual's sex.'"

With regard to possible conflicts between LGBTQ issues and strongly held religious beliefs, the Court said, "separately, the employers fear that complying with Title VII's requirement in cases like ours may require some employers to violate their religious convictions."

Doctrines Protecting Religious Liberty

But the Court noted the possible relevance of several doctrines:

1. "As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e-1(a)."

2. " the First Amendment can bar the application of employment discrimination laws "to claims concerning the employment relationship between a religious institution and its ministers." AND

3. "the Religious Freedom Restoration Act "prohibits the federal government from substantially burdening a person's exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest."

Thus the Court concludes that "how these doctrines protecting religious liberty interact with Title VII are questions for future cases too."

So it appears that because the Court resolved the issues in these cases without the need to decide whether the statutory term "sex," in this or other statutes, necessarily includes sexual orientation and/or sexual identity directly, some issues important to the LGBTQ community remain to be decided, and the executive branch may have (or at least claim to have) some leeway regarding how it deals with some issues.