The Supreme Court’s recent marriage equality decision was an important but limited victory for gay rights. On its face, the Court’s opinion in Obergefell v. Hodges applies only to marriage, not to other civil rights. And, though the decision does contain some language suggesting that the Constitution bans many other forms of anti-gay discrimination, the Constitution only prohibits discrimination by the government. In many states, it is still perfectly legal to fire a worker or deny someone housing because they are gay.
That will change, however, if the courts agree with a federal agency’s ruling that current federal law prohibits many forms of anti-gay discrimination. Though the ruling by the Equal Employment Opportunity Commission (EEOC) suggests that supporters of gay rights have a long road ahead of them before this battle is won, it also provides immediate relief to federal employees and offers a significant boost to lawyers trying to convince the courts to end anti-gay employment and housing discrimination.
The decision arises out of a federal agency’s decision not to convert an air traffic controller’s temporary promotion to a supervisory role into a permanent assignment — the employee alleges that he was denied the permanent position because he is gay. This, he argued and the EEOC agreed, violates existing federal civil rights law.
Though current federal law does not specifically forbid discrimination on the basis of “sexual orientation,” it does provide that “[a]ll personnel actions affecting employees or applicants for employment” must be “free from any discrimination based on race, color, religion, sex, or national origin.” A similar provision, which applies to the private sector, forbids employment discrimination “because of [an] individual’s race, color, religion, sex, or national origin.” The term “sex,” in this context, encompasses “gender,” “biological differences between men and women,” and “gender stereotyping,” according to court cases cited in the EEOC opinion.
This prohibition on sex discrimination, according to the EEOC, is broad enough to encompass discrimination based on sexual orientation. Suppose, for example, “that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk.” As the EEOC concludes, the “lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim . . . that sex was unlawfully taken into account in the adverse discrimination action.”
“A man is referred to as ‘gay’” the EEOC explains, “if he is physically and/or emotionally attracted to other men. A woman is referred to as ‘lesbian’ if she is physically and/or emotionally attracted to other women.” Thus, “sexual orientation is inseparable from and inescapably linked to sex and, therefore . . . allegations of sexual orientation discrimination involve sex-based considerations.”
The immediate impact of this decision is that it establishes that federal employers may not discriminate against gay, lesbian or bisexual employees (a previous EEOC ruling used similar reasoning to protect transgender employees). Ultimately, however, the question of whether this decision has staying power — and whether its logic extends to private employers — will be up to the courts. And the path to a Supreme Court decision embracing the EEOC’s reasoning is unlikely to be smooth.
For one thing, the EEOC is run by a bipartisan panel of five commissioners, two of whom are Republicans. And the EEOC’s decision on sexual orientation was approved by a 3–2 vote. This suggests that the EEOC’s reasoning will not be greeted with unanimous approval when it is considered by the federal judiciary.
Indeed, as the EEOC’s opinion acknowledges, some lower federal courts have already held that discrimination on the basis of sexual orientation is not a form of sex discrimination.
In the end, the long term viability of the EEOC’s reasoning will probably rest on two factors — how Justice Anthony Kennedy views this issue and whether the membership of the Supreme Court changes before this issue makes its way up to the justices. Kennedy, the author of Obergefell, has a fairly strong record of opposition to government-sponsored discrimination on the basis of sexual orientation, but he also frequently votes with his fellow conservatives in cases alleging discrimination by a private employer. How he will view the question of whether sexual orientation discrimination qualifies as sex discrimination under federal civil rights law is very much up in the air.
Additionally, it’s worth noting that four of the current justices are in their late 70s or early 80s. If a conservative justice is replaced by President Obama (or someone who views judicial appointments similarly), or if a liberal justice is replaced by a much more conservative president, then the scope of LGBT rights could grow or shrink rapidly in the next few years.