In 2007, the state of Kansas was forbidden from firing state employees because of their sexual orientation or gender identity under an executive order signed by then-Gov. Kathleen Sebelius (D). On Tuesday, the state’s sitting governor, Sam Brownback (R), abruptly rescinded this order. Before any state officials take Brownback’s action as a license to purge gay or trans workers, however, they should familiarize themselves with the Constitution and the Supreme Court’s decisions applying it in gay rights cases. If Kansas actually fires someone for being gay or trans, they are likely to find themselves on the wrong end of a federal lawsuit.
The Constitution forbids states from denying any person “the equal protection of the laws.” In the gay rights context, the Supreme Court explained most recently in its 2013 decision striking down the anti-gay Defense of Marriage Act (DOMA), “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.’”
The Court’s precedents also establish that discrimination by a state official is no less offensive to the Constitution than discrimination by an act of Congress, so if a Kansas state official fires a state employee simply because they are gay, lesbian or bisexual, they violate the Constitution — regardless of whether a state has an executive order in place banning the practice. Mere anti-gay animus, divorced from another, legitimate justification for the state official’s action, cannot justify discrimination.
Yet, while the Court’s precedents indicate that state-sponsored discrimination against gay workers is unconstitutional, LGBT Kansans should be aware of two caveats to this conclusion. The first is that, while the arc of the Supreme Court’s gay rights jurisprudence has bent towards justice in recent years, gay Americans are still caught in an odd kind of constitutional limbo that creates some uncertainty regarding the scope of their rights.
Although the word “discrimination” carries negative connotations, most forms of discrimination are entirely constitutional — and rightfully so. The government may legitimately prefer job applicants who performed well in college to those with low GPAs. Or it can discriminate against people who did not graduate from law school when hiring lawyers. Or it can choose to only throw people who committed crimes into prison while treating the rest of the population differently.
No sensible legal regime bans all forms of discrimination, rather, the Constitution bars what is often described as “invidious” discrimination — discrimination against groups that have historically be subject to discrimination due to a trait that bears little relation to their “ability to perform or contribute to society.” This is why race and gender discrimination are typically forbidden by the Constitution. It is also why many courts recognize that discrimination on the basis of sexual orientation is largely impermissible.
The Supreme Court, however, has not yet gone so far as to hold that discrimination against gay people is subject to “heightened scrutiny” — although several lower courts have done so. This oversight creates enough uncertainty regarding the scope of gay rights under the Constitution that a minority of federal judges ruled against marriage equality even after the Supreme Court struck down DOMA. If Kansas fires an employee because they are gay, and that employee sues, the fate of that lawsuit could hinge upon whether the case is heard by a judge who is inclined to construe the Supreme Court’s gay rights cases narrowly.
The second caveat is that, while the Supreme Court handed down a number of decisions protecting gay rights, they’ve had much less to say about the rights of transgender Americans. Although the United States Court of Appeals for the Eleventh Circuit held that “a government agent violates the Equal Protection Clause’s prohibition of sex-based discrimination when he or she fires a transgender or transsexual employee because of his or her gender non-conformity,” it is an open question whether the conservative Roberts Court will reach the same conclusion. Kansas is also located in the Tenth Circuit, and there is also no guarantee that Tenth Circuit judges will agree with the Eleventh Circuit.
Perhaps because of these two uncertainties, state-based LGBT rights groups in Kansas remain quite alarmed about what could happen to state employees who no longer enjoy the protection of Sebelius’s executive order. Equality Kansas, for example, tweeted out an admonition to reporters asking to speak to LGBT state employees — “To reporters asking us for LGBT KS State employees for you to interview: NO. They talk today, they’re fired tomorrow. Think about it. Thanks.”