Supreme Court's LGBTQ Decision Leaves Many Unanswered Legal Questions

By D. Mark Wilson posted 06-19-2020 10:11


While the U.S. Supreme Court decision this week in Bostock v. Clayton County resolves the issue of whether Title VII employment protections include sexual orientation and gender identity, Congress may still have to resolve a number of issues with new legislation.

The decision explicitly did not “address bathrooms, locker rooms, [dress codes,] or anything else of the kind” while declining “to say anything about other statutes whose terms mirror Title VII’s,” some of which may have implications for employers.

Currently, 23 states and the District of Columbia provide statutory protections for sexual orientation and 22 states do so for gender identity.  Therefore, the decision will not impact most large multi-state employers.

The decision also left open questions over the interplay between the Religious Freedom Restoration Act of 1993, Title VII, and other protections for religious beliefs.

Legislative approach: The House-passed and HR Policy-supported Equality Act would provide consistent and explicit non-discrimination protections for LGBTQ people across key areas of life, including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service.

Outlook:  The decision removes any pressure on the Senate to pass the Equality Act this year.  It is unclear if, or when, other court cases will generate enough political support in Congress to overcome concerns related to the Religious Freedom Restoration Act.