By Zeliang Mike Liu

On June 15, 2020, the Supreme Court issued a landmark 6-3 decision stating that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits an employer from firing an individual for being homosexual or transgender.[1] The question came to the court through three different cases: Bostock v. Clayton County, in which a child welfare advocate was fired for participating in a gay recreational softball league after ten years working for a Georgia county; Altitude Express v. Zarda, in which a skydiving assistant was fired after he told a female customer that he was gay, and the customer’s boyfriend complained that he inappropriately touched her; and R.G. & G.R. Harris Funeral Homes v. Equal Employment and Opportunity Commission, in which a funeral home employee was fired when she informed the funeral home that she decided to undergo gender reassignment surgery.[2] Writing for the majority, Justice Neil Gorsuch stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[3]

Though the court’s focus in Bostock was the issue of employers discharging employees based on sexual orientation and transgender status, the court arguably provided a broad ruling with impacts to multiple areas of the law. As Justice Samuel Alito stated in his dissent, the Court’s ruling is “virtually certain to have far-reaching consequences” and will inevitably affect other federal laws, such as Title IX of the Education Amendments of 1972 (“Title IX”), the Patient Protection and Affordable Care Act (“ACA”), and the Fair Housing Act (“FHA”).[4] The implication of Bostock is not only protection of LGBTQ+ rights in employment, but an essential tool to address discrimination against LGBTQ+ community members not just in education, healthcare, and housing.

Employment

Workplace discrimination against LGBTQ+ community members is well documented. Between 8–17 percent of LGBTQ+ workers and 13–47 percent of transgender workers have been denied employment opportunities or unfairly discharged because of sexual orientation or transgender status.[5] Nearly 30 percent of LGBTQ+ workers of color reported that they have experienced employment discrimination for sexual orientation.[6]

Title VII prohibits employment discrimination based on an individual’s sex.[7] The statute extends beyond discharging and applies when employers “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment.”[8]Under Title VII, “compensation” includes not only wages but also benefits such as overtime pay, life insurance, vacation and holiday pay, and bonuses.[9]

The Supreme Court’s decision in Bostock directly affects employment practice with regard to an employee’s sexual orientation or transgender status. In its reasoning, the Court stressed that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.”[10]Thus, although the individual cases before the Court focused on the wrongful termination of LGBTQ+ workers, the Court nevertheless determined that under Title VII protects against broader discrimination based on sexual orientation and transgender status.[11]

Although the Court specifically stated that its decision in Bostock does not “address bathrooms, locker rooms, or anything else of the kind” when addressing employers’ concern of whether sex-segregated spaces violate Title VII,[12]the Court’s decision does extend to equal access to existing sex-segregated facilities, meaning that an employer cannot deny an LGBTQ+ worker from access to the existing sex-segregated facilities.[13]

Education

Title IX prohibits discrimination “on the basis of sex” in any education program or activity that receives federal funding.[14]Although the statue does not define the scope of discrimination “on the basis of sex,” courts have often looked at cases that define the scope of sex discrimination under Title VII to interpret the meaning of discrimination “on the basis of sex” under Title IX because of the similarities between Title VII and Title IX’s language.[15]The Fourth, Sixth, and Seventh Circuit Courts of Appeal, have all previously held that Title IX prohibits discrimination based on sexual orientation and gender identity by extending decisions that stated Title VII prohibits discrimination based on sexual orientation and gender identity prior to the Supreme Court’s decision in Bostock.[16]

Therefore, Bostock’s holding that Title VII prohibits discrimination based on sexual orientation and transgender status provides further assistance for courts to extend Title IX’s protections for LGBTQ+ students.

Housing

The FHA prohibits discrimination in the sale, rental, and financing of housing based on race, color, national origin, religion, sex, familial status, and disability.[17]Similar to Title IX, courts often look to Title VII when determining the scope of prohibited sex discrimination under FHA.[18]Thus, courts are also likely to extend Bostock to FHA and offer greater protection on LGBTQ+ rights under the FHA.

The Trump administration issued a proposal in July 2020 to limit the 2016 Equal Access Rule and allow housing programs funded by the U.S. Department of Housing and Urban Development (“HUD”) to deny shelter access based on transgender status.[19]In light of the Bostock decision, Reps. Jennifer Wexton and Maxine Waters submitted a letter to Dr. Ben Carson, Secretary of HUD, to revise the proposal in accordance with Supreme Court’s holding in Bostock.[20]However, Dr. Carson stated in response that “[t]he Supreme Court’s ruling in Bostock has no impact on the Department’s proposed rule.”[21] HUD’s apparent refusal to take Bostock highlights a next step in the path forward for LGBTQ+ rights.

Healthcare

Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.[22] The nondiscrimination language in Section 1557 was built on other federal civil rights laws including Title VII, Title IX, the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.[23] Thus, since the Supreme Court held in Bostock that Title VII forbids discrimination based on sexual orientation and transgender status, such holding likely carries significant weight in application to ACA.

In 2016, the Obama administration promulgated a rule stating that Section 1557 of ACA prohibits discrimination in health activities and activities on the basis of sexual orientation and gender identity.[24] Earlier this year, the Trump administration proposed a rule to exclude ACA’s protection on sexual orientation and gender identity, and four days after the Bostock decision, the Department of Health and Human Services issued its final rule.[25] However, on August 17, 2020, one day before the rule was planned to go into effect, a federal judge issued a preliminary injunction, which barred the rule from going into effect, relying on the Supreme Court’s decision in Bostock.[26]The recognition of the interplay between Title VII and the ACA provided further assurance on Bostock’s positive impact on ACA.

The Supreme Court’s decision in Bostock is a great victory for LGBTQ+ community that’s worth celebrating. Although the fight for LGBTQ+ rights is not over, Bostock nevertheless demonstrates that the LGBTQ+ community has advanced powerful arguments that even the Supreme Court’s most ardent textualist supports. Similar text in other federal statutes provides a path forward for future solidification of LGBTQ+ rights.


[1] See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).

[2] Id. at 1737–38.

[3] Id. at 1741.

[4] Id. at 1778 (Alito, J., dissenting).

[5] Ctr. Am. Progress et al., A Broken Bargain: Unchecked Discrimination Against LGBT Workers 1 (2014), https://www.lgbtmap.org/file/unchecked-discrimination-against-lgbt-workers.pdf.

[6] Nat’l Pub. Radio Et Al., Discrimination in America: Experiences and Views of LGBTQ Americans 11 (2017), https://cdn1.sph.harvard.edu/wp-content/uploads/sites/94/2017/11/NPR-RWJF-HSPH-Discrimination-LGBTQ-Final-Report.pdf.

[7] 42 U.S.C. § 2000e-2(a).

[8] Id.

[9] U.S. Equal Emp’t Opportunity Comm’n, EEOC-NVTA-0000-12, Facts about Equal Pay and Compensation Discrimination (1997), https://www.eeoc.gov/laws/guidance/facts-about-equal-pay-and-compensation-discrimination.

[10] Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1747 (2020).

[11] See id.

[12] Id. at 1753.

[13] The U.S. Equal Employment Opportunity Commission (“EEOC”) has established that a transgender employee’s right to use woman bathroom is protected by Title VII. Lusardi v. McHugh, E.E.O.C. Doc. No. 0120133395, 2015 WL 1607756, at *7 (Apr. 1, 2015).

[14] 20 U.S.C. § 1681(a).

[15] See, e.g., Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1047 (7th Cir. 2017); Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1022–23 (7th Cir. 1997).

[16] See Whitaker, 858 F.3d at 1047–49; Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221 (6th Cir. 2016) (noting that Title VII’s prohibition on discrimination based on sexual non-confirming behaviors is applicable in the context of Title IX); Grimm v. Gloucester Cnty. Sch. Bd., 400 F. Supp. 3d 444, 451-52 (E.D. Va. 2019), aff’d, No. 19-1952, 2020 WL 5034430 (4th Cir. Aug. 26, 2020), as amended (Aug. 28, 2020).

[17] 42 U.S.C. § 3604(a).

[18] See, e.g., Smith v. Avanti, 249 F. Supp. 3d 1194, 1200 (D. Colo. 2017) (“The Tenth Circuit looks to Title VII discrimination cases for guidance in addressing discrimination issues under the FHA.”).

[19] Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs, 85 Fed. Reg. 44,811, 44,811 (proposed July 24, 2020) (to be codified at 24 C.F.R. pt. 5, 576), https://www.govinfo.gov/content/pkg/FR-2020-07-24/pdf/2020-14718.pdf.

[20] See Press Release, U.S. House Comm. Fin. Serv., Walters and Wexton Call on HUD to Reconsider Revisions to Equal Access Rule (July 6, 2020), https://financialservices.house.gov/news/documentsingle.aspx?DocumentID=406742.

[21] Letter from Ben Carson, Sec’y, U.S. Dep’t Hous. & Urban Dev., to Maxine Waters, Rep., 43rd Cong. Dist., and Jennifer Wexton, Rep., 10th Cong. Dist. (July 13, 2020), https://wexton.house.gov/uploadedfiles/hud_response_to_waters-wexton_6.29.20_letter.pdf.

[22] See 42 U.S.C.§ 18116.

[23] Id.

[24] See Maya Rhodan, Obamacare Rule Bans Discrimination Against Transgender Patients, Time (May. 13, 2016), https://time.com/4329609/transgender-discrimination-obamacare-healthcare/; see also 45 C.F.R. § 92.207, https://www.govinfo.gov/content/pkg/CFR-2016-title45-vol1/pdf/CFR-2016-title45-vol1-sec92-207.pdf.

[25] See Dan Diamond, Trump Team Moves to Scrap Protections for LGBTQ Patients, Politico (Apr. 24, 2020), https://www.politico.com/news/2020/04/24/trump-team-moves-to-scrap-protections-for-lgbtq-patients-206398; see also Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June. 19, 2020) (to be codified at 42 C.F.R. pt. 438, 440, 406 and 45 C.F.R. pt. 86, 92, 147, 155, 156).

[26] Walker v. Azar, No. 20CV2834FBSMG, 2020 WL 4749859, at *10 (E.D.N.Y. Aug. 17, 2020).

By Emily Yates

In 2012, North Carolina became the thirtieth state to adopt a constitutional amendment refusing to recognize any marriages or civil unions other than those between one man and one woman.[1]  Article 14, Section 6 of the North Carolina Constitution, popularly referred to as “Amendment One,” states that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized by this state.”[2]  Only eight years ago, Amendment One passed with 61% of voters in favor of enshrining this restrictive definition of marriage in our state constitution.[3]  When the passage of Amendment One was announced, proponents “celebrated the win with a tiered wedding cake at a party in the North Raleigh Hilton Hotel.”[4]  Tami Fitzgerald, then the chairwoman of Vote for Marriage NC, the group behind Amendment One, attempted to convince the press that “we are not anti-gay, we are pro marriage.”[5]  She elaborated that “the whole point is simply that you don’t rewrite the nature of God’s design for marriage based on the demands of a group of adults.”[6]  However, LGBTQ+ advocates and opponents of Amendment One recognized that “this is just a skirmish, in a battle in the war that we will win.”[7]

Thankfully, Amendment One was rendered moot three years after its passage by the Supreme Court’s landmark ruling in Obergefell v. Hodges.[8]  In Obergefell, the Supreme Court held that same-sex couples have the constitutional right to “have their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.”[9]  This ruling marked the federal legalization of same-sex marriages and overruled all state laws and constitutional provisions outlawing such marriages. 

Unsurprisingly, not everyone agreed with the holding and impact of Obergefell.  Some felt it “fundamentally misunder[stood] the reality of what marriage is,” and that same-sex marriages would degrade the “sanctity of marriage.”[10]  Others felt that the decision was made on fabricated constitutional grounds, and that it deprived states of the ability to define marriage as between one man and one woman, as many had already chosen to do.[11] 

After Obergefell, it seemed as if the same-sex marriage debate had finally ended.  However, some North Carolinians were not ready to give up the fight.  On Valentine’s Day 2019, five Republican state legislators introduced House Bill 65, the short title of which was the Marriage Amendment Reaffirmation Act.[12]  The long title of House Bill 65 was “An Act to Reaffirm the Vote of the People of North Carolina to Adopt Article XIV, Section 6 of the Constitution of the State of North Carolina, Known as the Marriage Amendment, to State Why the Amendment Should be Upheld, to Declare Null and Void for the State of North Carolina the Obergefell v. Hodges Decision of the United States Supreme Court, and to Call on the United States Supreme Court to Overturn the Obergefell v. Hodges Decision.”[13]

Despite its comedically long title, House Bill 65 contains some divisive and scary rhetoric.  The Representatives who drafted the bill assert that Obergefell must be overturned because it violated the Establishment Clause of the First Amendment by imposing upon the American people “Secular Humanism” and its beliefs.[14]  It defines all marriages other than those between a man and a woman as “parody marriages” that “do not follow the scientifically obvious biology of the human species.”[15]  It continues by iterating that “there are thousands of taxpayers living in the State of North Carolina who sincerely believe that all forms of marriages that do not involve one man and one woman are immoral. . . [and] enable immorality and the erosion of community standards of decency.”[16]  House Bill 65 concludes that North Carolina must consider “null and void and unenforceable” the holding in Obergefell as violative of the First Amendment of the US Constitution.[17]

The impact of such a bill, should it be passed, would be the attempted nullification of all same-sex marriages performed since 2015.  Fortunately, despite the fact that the bill was referred to the Committee on Rules, jokingly referred to by some as where “bills go to die,”[18] House Bill 65 is not dead enough.  Two years before House Bill 65 was proposed, the state legislature was presented with House Bill 780, which also attempted to reinstate Amendment One on the grounds that Obergefell incorrectly interpreted “the decree of God.”[19]  Like House Bill 65, House Bill 780 was sent to the Committee on Rules.[20]  However, of House Bill 780, House Speaker Tim Moore released a public statement that the bill “will not be heard.”[21]  No such assurance has been made about House Bill 65. 

Nearly five years ago, the Supreme Court recognized the right of same-sex couples to marry.  This decision should have finally allowed same-sex couples to rest assured in the security of their unions and the protections of their families against government interference.  Unfortunately for same-sex married couples in North Carolina, this has not been the case.  On a biannual basis, legislation has been proposed attempting to undermine the constitutional right to marriage.  Both pieces of legislation relied upon reinstating Amendment One, which would set North Carolina back nearly ten years in the LGBTQ+ rights movement and upend and unknown number of marriages and families.  The North Carolina legislature must act to formally remove Amendment One from the state constitution and finally give same-sex married couples the stability and privacy to which they are constitutionally entitled.


[1] Campbell Robertson, North Carolina Voters Pass Same-Sex Marriage Ban, N.Y. Times (May 8, 2012), https://www.nytimes.com/2012/05/09/us/north-carolina-voters-pass-same-sex-marriage-ban.html.

[2] N.C. Const. art. XIV, § 6.

[3] Karen McVeigh, North Carolina Passes Amendment 1 Banning Same-Sex Unions, Guardian (May 9, 2012), https://www.theguardian.com/world/2012/may/09/north-carolina-passes-amendment-1.

[4] Id.

[5] Robertson, supra note 1.

[6] Id.

[7] Id.

[8] 135 S.Ct. 2584 (2015).

[9] Id. at 2593.

[10] Nathanael Blake, 3 Years of Experience Have Only Proved That Obergefell Was a Big Mistake, Federalist (June 28, 2018), https://thefederalist.com/2018/06/28/3-years-experience-proved-obergefell-big-mistake/.

[11] Ken Connelly, Why Supreme Court Got It Wrong, CNN (June 27, 2015), https://www.cnn.com/2015/06/26/opinions/connelly-same-sex-marriage-ruling/index.html.

[12] H.B. 65, 2019 Gen. Assemb. Reg. Sess. (N.C. 2019).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Colin Campbell, Proposed Gay Marriage Ban Is Dead in NC House, Speaker Says, News & Observer (Apr. 12, 2017), https://www.newsobserver.com/news/politics-government/state-politics/article144169109.html.

[19] Becca Heilman, NC Bill Banning Same-Sex Marriage Will Not Advance in the General Assembly, Daily Tar Heel (Apr. 13, 2017), https://www.dailytarheel.com/article/2017/04/nc-bill-banning-same-sex-marriage-will-not-advance.

[20] Id.

[21] Campbell, supra note 18.

By Jon McLamb

The United States Supreme Court is deciding whether to hear a case with significant ramifications on First Amendment religious freedom.  This time, however, a decision will come in direct conflict with local and state anti-discrimination laws that prevent businesses from discriminating on the basis of an person’s sexual orientation.

The case, Arlene’s Flowers, Inc. v. Washington, involves a private florist in Washington who refused to make a flower arrangement for a same-sex couple’s wedding.[1]  The business owner cited her religious beliefs against same-sex marriage as her reason for the refusal.[2]  The florist argued that she was entitled to refuse because providing services to a same-sex marriage ceremony would offend her religious beliefs so, therefore, she was protected under the First Amendment right to religious freedom.[3]  The couple and the state believed that the florist had violated both local and state anti-discrimination laws by denying the couple’s request.[4]  As a result of this conflict, the state filed a lawsuit on the couples’ behalf seeking injunctive and other relief.[5]

The case first reached the United States Supreme Court in June 2018.[6]  In that instance, the Court remanded the case back to the Washington state courts to address the case in light of its decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which was decided that same month.[7]  In Masterpiece Cakeshop, the Court held that a business owner’s religious freedom was violated when the business owner received penalties for refusing to sell a wedding cake to a same-sex couple.[8]  The Court reasoned that the business owner deserved a neutral decisionmaker under the First Amendment that would give full and fair consideration to his religious beliefs against same-sex marriage.[9]

The Washington State Supreme Court subsequently re-decided the case on remand from the United States Supreme Court.[10]  Applying the United States Supreme Court’s decision in Masterpiece Cakeshop, the Washington Supreme Court unanimously ruled against the florist.[11]  The Washington Supreme Court reasoned that there is no exception to the public accommodation statutory requirement for religious beliefs, and the florist was therefore required to accommodate the same-sex couple’s request for a flower arrangement.[12]  The Court found that the Masterpiece Cakeshop framework required a neutral analysis that involved looking into both the religious freedom of the First Amendment and the anti-discrimination statutes currently enacted in the State of Washington.[13]

Following the decision of the Washington Supreme Court, the florist petitioned the United States Supreme Court for a writ of certiorari.[14]  In the petition, the florist argued that her First Amendment right to freedom of religion would be infringed if Washington penalized her following her beliefs and not serving the couple.[15]  In arguing this point, the florist contended that the holding of the Washington Supreme Court is in direct conflict with the decision in Masterpiece Cakeshop because her refusal to serve the couple is protected expressive freedom protected under that case and other United States Supreme Court precedent.[16]

Both the State of Washington and the couple filed responses to the florist’s petition for writ of certiorari. The State of Washington argued that the florist’s contention that she was “participating in the wedding ceremony” if she served the couple a flower arrangement is highly misleading, because simply providing a service to the couple is not the same as participating in the ceremony.[17]  Additionally, Washington argued that its supreme court’s decision does not violate United States Supreme Court precedent, but actually follows the current law by neutrally addressing both the religious freedom of the florist and the right to be free from discrimination of the couple.[18]  Further, Washington contended that there is not a violation of United States Supreme Court precedent just because the Washington Supreme Court disagreed that the florist had a protected right that outweighs the right of the couple in this instance.[19]

The couple’s brief in response to the florist’s petition for writ of certiorari addressed the same arguments as Washington’s brief in opposition.[20]  Like Washington, the couple opined that the Washington Supreme Court’s decision did not conflict with United States Supreme Court case law and did not force the florist to participate in their wedding ceremony.[21]  The one major difference, however, is that the same-sex couple focused on their right to equal access that protected them against discrimination as opposed to the state’s brief, which focused on the florist’s lack of protected right to religious freedom.[22]

Several different interest groups filed amicus briefs in support of the petition for writ of certiorari.  These groups include mostly conservative, religious, and constitutional scholars.  In essence, their arguments addressed the right of the florist to refuse service to a same-sex couple under the First Amendment’s right to freedom of religion.

Because many interest groups have voiced their concerns about the Washington Supreme Court’s decision, the United States Supreme Court is likely to grant certiorari.  The Supreme Court may also grant certiorari to resolve the direct conflict between two protected interests: the right to religious freedom and the right of same-sex couples to be free from discrimination on account of sexual orientation.  The likelihood of granting certiorari is also higher because the Supreme Court heard this case at an earlier date but did not resolve the dispute. 

This case presents an opportunity for the United States Supreme Court to address issues not reached in the Masterpiece Cakeshop decision. Many in the legal profession believe that the Masterpiece Cakeshop decision rendered a narrow holding that protected only the religious rights of the individual business owner in that circumstance. Therefore, the Court may take this opportunity to expand that holding to protect all business owners with similar religious beliefs.  On the flip side, the Court could use this opportunity to distinguish the cases and limit the Masterpiece Cakeshop’s holding, giving a win to members of the LGBT community who continue to fight for their Constitutional rights, even after the landmark decision of Obergefell v. Hodges.[23]  The Court will likely make a decision whether to grant certiorari in the next few weeks, and the disposition of the case will have significant impact on American citizens, one way or another.


[1] See 187 Wash.2d 804 (2017).

[2] See id. at 816–17.

[3] See id. at 818.

[4] See id. at 818–19.

[5] Id.

[6] 138 S.Ct. 2671 (2018).

[7] 138 S.Ct. 1719 (2018).

[8] Id. at 1724.

[9] Id. at 1732.

[10] State v. Arlene’s Flowers, Inc., 193 Wash.2d 469 (2019).

[11] Id. at 507–08.

[12] Id. at 508.

[13] Id.

[14] Petition for Writ of Certiorari, Arlene’s Flowers (2019).

[15] Id. at i.

[16] Id. at 26.

[17] State’s Brief in Opposition, Arlene’s Flowers, at11–14 (2019).

[18] Id. at 25–35.

[19] Id. at 26–27.

[20] See generally Brief of Respondents, Arlene’s Flowers (2019).

[21] Id.

[22] Compare Brief of Respondents, Arlene’s Flowers (2019) (addressing whether florist can deny same-sex couple’s equal access to flower arrangement services) with State’s Brief in Opposition, Arlene’s Flowers (2019) (addressing whether freedom of religion allowed florist to deny public accommodation to same-sex couple).

[23] 135 S.Ct. 2584 (2015).