Gabriel Arkles is a senior staff attorney at the ACLU and a volunteer with Black and Pink and the Sylvia Rivera Law Project. He writes in his personal capacity, and his views do not necessarily reflect those of his employer.
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The Supreme Court's ruling on anti-discrimination protections for LGBTQ people is not only an extraordinary victory for workplace equity, it also provides strong legal pushback against Donald Trump's attempts to roll back health care discrimination protections for LGBTQ people.
The Supreme Court on Monday unambiguously ruled that discrimination against employees for being transgender, lesbian, gay or bisexual violates federal law. The Supreme Court's decision also defangs the Trump administration's attacks on transgender people's access to health care. The Affordable Care Act prohibits discrimination based on sex. On Friday [2020-06-12], Trump issued a rule that removed "gender identity" and "sexual orientation" from the definition of sex. But now the Supreme Court has ruled that discrimination because of sex includes LGBTQ people, revealing that aspect of the rule change as no more than an empty gesture. Trump cannot rewrite a law Congress passed, or overturn a decision of the Supreme Court.
I said back in October that I was cautiously optimistic that we would win those cases, but this decision exceeds my hopes. Writing for the majority in a 6-3 decision, Justice Neil Gorsuch said, "to refuse enforcement just because ... [LGBTQ people] happened to be unpopular at the time of the law's passage would not only require us to abandon our role as interpreters of statutes, it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefits of the law's terms."
He concluded, "An employer who fires an individual merely for being gay or transgender defies the law."
The reasoning underlying this decision is simple. You cannot discriminate against someone for being transgender or for being LGBQ without discriminating against them because of sex. That means that the decision has huge implications for any area of law where sex discrimination in prohibited. There is no reason why discrimination "because of sex" would address anti-trans or anti-LGBQ discrimination for employment but not for health care.
Late on Friday, the Trump administration changed Affordable Care Act regulations, saying that transgender people, LGBQ people and people who seek or have had abortions would no longer be protected from health care discrimination. The rule also weakens protections for people who face communication barriers in health care settings because of ableism and staff who only use English. And it limits the entities that have to comply with the anti-discrimination rule at all.
With the Supreme Court decision, it is clear that the Trump administration has no ground to stand on when it comes to anti-LGBTQ discrimination. A federal agency cannot authorize a type of discrimination that Congress has prohibited. Discrimination because of sex includes anti-LGBTQ discrimination. That said, the rule change could still have real consequences for those of us who face discrimination because a health care provider does not approve of our reproductive choices or because we have limited proficiency in English. In that and in many other ways, we still have so far to go.
The Supreme Court could not create protections where none exist. So unless the Equality Act passes, we still won't have federal protection from discrimination in public places like restaurants, hotels or stores.
The Supreme Court did not express any opinion about how single-sex policies -- about restrooms, dress codes, sports, homeless shelters or prison classifications -- apply to transgender people. And it shouldn't have -- these cases were not about that. But that means there remains doubt about what will happen with another anti-trans rule change that Trump moved forward on Friday [2020-06-12], targeting houseless trans people. He sent the rule to Congress, which means it will likely be formally proposed in two weeks. While the text of the rule is not public yet, according to all reports, it would permit shelters to ban trans women from women's shelters. After it is proposed, the public will get some time to comment on it before it can be made final. But if it does become final, it will lead to more street homelessness and death for trans and gender-nonconforming people, especially disabled trans women of color. According to the U.S. Trans Survey, around 30 percent of trans respondents had been houseless at some point -- that number shot up to 59 percent for trans people living with HIV and Indigenous trans women. And the Supreme Court victory will do nothing directly to stop the attack on asylum seekers, including trans asylum seekers, under attack with a different set of new proposed rules.
In so many ways, this is a moment of extraordinary celebration and mourning. Two of the three employees whose rights were just vindicated did not survive to see the result. Aimee Stephens, an incredible person and leader, died just last month. We have also just commemorated the anniversary of the massacre of Latinx LGBTQ people at the Pulse club in Orlando; seen a newly released video that revealed more about how solitary confinement and indifference killed Layleen Polanco, a trans woman, in New York; and seen reports of the torture and murder of two more Black trans women, Riah Milton in Cincinnati and Dominique Rem'mie Fells in Philadelphia. The best anti-discrimination laws in the world do not actually stop all discrimination, especially discrimination against the most marginalized members of our communities. Philadelphia and New York already prohibited discrimination against trans people and Black people. That didn't save Layleen's or Dominique's lives.
And while the anti-trans attacks seem like they just won't let up, many cis people are also showing up for trans people. For folks who want to do the same, I suggest starting by reading this guidance from the Transgender Law Center, then joining protests in ways that respect the leadership of Black trans people; hiring Black trans people; intervening each and every time you witness anti-trans discrimination, violence or harassment; participating in mutual aid projects; giving money to individual Black trans people and trans-led organizations; amplifying the voices of Black trans people by offering paid writing and speaking opportunities and by following, subscribing, retweeting and sharing; submitting comments to oppose the anti-trans shelter rule and anti-immigrant rules when they come out; supporting the Equality Act in Congress; and contacting elected officials to insist on defunding police, prosecutors and prisons and investing in health care and housing resources for trans communities of color.
I believe that despite all we have achieved, we still have a long way to go, and despite all terrible things we are facing, we are living in a moment of great possibility. What happens next depends on all of us.
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