On June 15, the Supreme Court ruled that LGBTQ+ people are protected from workplace discrimination under Title VII of the Civil Rights Act. Before this, it was perfectly legal to deny LGBTQ+ Americans jobs, to fire them based on their gender identity and sexuality or enact other forms of workplace discrimination. Proponents have stressed how overdue these rights are, and they’re right. But it is in part how basic and seemingly obvious this sort of legal protection is that made it take so long to secure.
Any sort of progress is good progress, which is why it seems paradoxical to say that increased social acceptance and preceding rulings in favor of LGBTQ+ rights may have made it take longer to get to this point. The steps themselves aren’t the issue, but rather the assumptions that go along with them. In general, the more accepted LGBTQ+ people are, the less likely people are to think they face discrimination. Take for instance the legalization of same-sex marriage. A relatively sudden shift in public opinion set the stage, going from around an even split in 2012 to only 37 percent of people not in favor by May 2015, a month before the Supreme Court legalized same-sex marriage nationwide. In the wake of this ruling, the perceived level of discrimination that people who are gay or lesbian faced dropped noticeably from 2015 to 2016. The vast majority of Americans have believed in equal rights for the gay and lesbian community for decades now, but well into 2019, only about half believed we needed new civil rights laws to ensure reduced discrimination. Because individuals were being less discriminatory and the Supreme Court ruled in our favor in a single case, the assumption was that larger systems and institutions were less discriminatory as well, even if this wasn’t the case. The prevalence of discrimination against LGBTQ+ workers or unfair treatment by employers, like being denied equal pay or promotions, actually increased from 21 percent to 22 percent between 2013 and 2017, respectively.
Some data even suggests the amount of individual-level discrimination LGBTQ+ people experienced didn’t change alongside public opinion, either. In the same studies measuring employment discrimination from 2013 to 2017, reports of being the target of homophobic and/or transphobic slurs also dropped by just one percent — 58 percent to 57 percent. In fact, for every measure of individual bigotry asked about in the 2017 study — slurs, threats, sexual harassment, acts of violence — the majority reported experiencing it.
It doesn’t help that the legalization of same-sex marriage preceded the Title VII ruling. If each step we take makes the public less and less concerned with the next step, the order in which we do things is of increasing importance. Marriage equality is important, but legal protection in society at large should always have been the priority. Not everybody gets married, gay or straight, but just about everybody needs a house, a job and a doctor. Regardless, the right to marry didn’t facilitate married living when same-sex couples could be denied housing and can still be barred from adopting children. It would have taken longer to ensure the right to marriage if we had instead focused our efforts on broader issues like that of institutional discrimination, but LGBTQ+ people would not have been denied health care, homes and jobs in the interim (Or at the very least, the law would be on their side when they were). Nothing is more emblematic of this problem than Aimee Stephens, the plaintiff in one of the cases this ruling concerns, who died of kidney failure before she could see the outcome of her case — she was 59 years old. Transgender people over the age of 50 are more likely to be in poor physical health than even their lesbian, gay and bisexual counterparts, let alone straight and cisgender people. The health disparities that trans people and gender-nonconforming individuals face are the result of many, many factors, but one in five being denied healthcare outright is no small part of it — and there is still nothing in place to stop this, because this nondiscrimination ruling only applies to employers. Rather, the opposite is true; transgender people (all LGBTQ+ people, for that matter) are losing what healthcare related protections they already had. This is not unlike how discrimination against gay and lesbian workers increased after same-sex marriage was legalized. Every step forward calls more attention to us, including the unwanted attention.
What’s done is done, but we can adjust our priorities to make sure something like this doesn’t happen again. We still have to ensure this ruling actually carries out change. Already, there have been groups taking advantage of the gaps in the Civil Rights Act. One of these gaps is the lack of protection in regards to healthcare; the Department of Health and Human Services is suddenly stressing the importance of biological sex in a healthcare setting and suggesting we should treat these matters in ways that may not abide by what the court has said. The logic that sex assigned at birth — what “biological sex” is meant to imply — matters as much as or more than the body’s current state is flawed in terms of providing health care. For a trans person with hormone levels more akin to people of the opposite “biological sex,” the way they were born matters far less in this regard than the body they have now. HHS is not acting out of concern for patients; it is more concerned about which patients it will have to work for.
Furthermore, we need to address what this ruling doesn’t change. LGBTQ+ people lost those aforementioned healthcare protections a couple days before the Supreme Court granted them employment protection. Trans women of color are still more likely to be murdered than the rest of us, and police violence continues to disproportionately harm LGBTQ+ people, particularly those who are Black LGBTQ+ people in many other countries face disgusting levels of discrimination, with the Polish government’s campaign against “LGBT ideology” and the public’s attempts to form “LGBT-free zones” being just one example. We can’t allow history to repeat itself and convince ourselves things are solved with a single court ruling like we did with marriage equality five years ago. To quit when things start to improve rather than keep up the momentum is a step backward in the long term.
Ray Ajemian can be reached at rajemian@umich.edu.