In the Community

On June 15, 2020, Daniel authored the following message for members of the Bay Area Lawyers for Individual Freedom:

Today the U.S. Supreme Court finally extended Title VII’s protections to employees who face discrimination because of their sexual orientation and/or gender identity.  In the 6-3 opinion authored by Justice Gorsuch, the Court resolved a circuit split in favor of interpreting discrimination on the basis of “sex” in the Civil Rights Act of 1964 to include discrimination on the basis of sexual orientation and/or gender identity and affirmed that discrimination on the basis of sex need not be the sole reason an employee is terminated to incur Title VII liability.

In the Court’s own words, “An individual’s homosexuality or transgender status is not relevant to employment decisions.” These decisions include the selection, evaluation, compensation and/or termination of an employee.  This simple statement is monumental to our community in that it validates that our rainbow of sexualities and gender identities has no bearing on our ability to perform in the workplace.  By extension, our sexualities and gender identities should have no bearing on access to healthcare, housing, education, and other services and opportunities.

In stating that “homosexuality and transgender status are inextricably bound up with sex,” the Court accepted the argument many of us have been making for why discrimination against a lesbian, gay, bisexual, or transgender, queer, or intersex person is no different from discriminating against someone because they are male or female according to the statute’s unambiguous, plain, and broad command. Last Friday, on the anniversary of the Pulse Nightclub tragedy, the Trump administration finalized a rule implementing the Affordable Care Act (ACA) in a way that excludes from the interpretation of “sex” protection against discrimination on the basis of gender identity and pregnancy status in health care.  BALIF anticipates today’s ruling will result in the invalidation of this rule as discriminatory and unlawful because the ACA’s Section 1557 mandate is based on Title IX, which mirrors the language of Title VII.  Similarly, BALIF expects today’s ruling to impact over 100 federal statutes referenced in Justice Alito’s dissent (see Appendix C) such that these statutes will now necessarily include protection for LGBTQI+ individuals.  Many state statutes also mirror the language of Title VII.

While equality and justice for our community has been delayed for decades in many facets of our lives, today as a country we take a major step towards that place over the rainbow where we strive to arrive: a world where LGBTQI+ people live with dignity and equality under the law.  Now we must march on, locking arms with other underserved and underrepresented communities in an intersectional approach to achieving equality.

We reiterate our call to dismantle systemic racism.  Despite today’s ruling, there will still remain critical gaps in our federal non-discrimination law.   LGBTQI+ Americans have long lived with the fear we may lose our jobs, be denied opportunities, be denied healthcare, or even lose our lives.  Many Americans still face such fears simply because of who they are.  Black and African-American people in particular continue to face much of the same oppression and violence that the Civil Rights Act was intended to guard against.  The legal rights secured today for the LGBTQI+ community derive from the same sentence that affords rights based on race.  We cannot affirm the rights for LGBTQI+ people without affirming the rights of those discriminated on the basis of race, color, religion, and/or national origin too.  Onward, together!