This week, five years after a federal judge struck down North Carolina’s ban on same-sex marriage, the U.S. Supreme Court is taking up an issue that, for some, could be even more consequential for lesbian, gay, bisexual and transgender North Carolinians.
The nation’s highest court heard opening arguments Tuesday in three cases that could decide whether Title VII of the Civil Rights Act of 1964 protects LGBTQ people from employment discrimination based on their sexual orientation or status as transgender people.
Kendra Johnson, executive director of the LGBTQ advocacy group Equality NC, said that while the community has been fighting for employment protection in all states for decades, it is daunting to have it before the current Supreme Court.
“For me personally, it’s creating a great deal of anxiety to have this issue in the hands of the court with its current makeup,” Johnson said.
The cases now before the Court are the first dealing with LGBTQ rights issues since the retirement of Justice Anthony Kennedy last year. Kennedy often acted as the court’s swing vote, writing the majority opinion in the Court’s four most recent major LGBTQ rulings.
Two new conservative justices appointed by President Donald Trump – Justices Neil Gorsuch and Bret Kavanaugh – are largely unknown quantities when it comes to deciding LGBTQ rights issues on a national level, but advocates are concerned.
“They tend to have a more narrow interpretation of law in general and, at this particular moment, where we are seeing the rollback across the country of LGBTQ rights that were won ahead of or in the wake of marriage equality…[it’s] a time of anxiety,” Johnson said.
During opening arguments Tuesday, Gorsuch asked pointed questions, calling Title VII coverage for LGBTQ people “really close.” But he also said he is worried about the “social upheaval” that might result in the court granting employment protections to all LGBTQ people.
The cases involving employment discrimination over sexual orientation are Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Ga. The case dealing with employment discrimination with regards to transgender status is R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.
Public opinion outpaces facts on the ground
Almost half of Americans incorrectly believe federal law already provides protection against employment discrimination for LGBTQ people, according to a Reuters/Ipsos poll released in June.
In fact, explicit legal protections against employment discrimination for LGBTQ people exist in only 21 states, the District of Columbia and two U.S. territories – Puerto Rico and Guam.
About half of all LGBTQ Americans – including all those in North Carolina – live in states that provide no legal protections if they are denied employment, fired, denied a promotion or professional training or even harassed in the workplace because they are LGBTQ.
In a 2018 study from the Movement Advancement Project, a quarter of all LGBTQ people surveyed said they had experienced such discrimination.
“One of the things that is definitively happening is that more and more people are aware of the reality that you can be fired for being gay or transgender,” said Jasmine Beach-Ferrara, executive director at the Campaign for Southern Equality. “And a lot of people are shocked to hear that. The actual reality of that – which these cases lay bare – should start a national conversation.”
Even as the LGBTQ community braces for what could be a loss at the Supreme Court, Beach-Ferrara said, it is worth reflecting on the progress that has been made both in the courts and in the public awareness of LGBTQ rights issues in the five years since marriage equality came to North Carolina.
“Our community, like so many communities, knows that there is a long arc to history and to progress,” she said. “ What makes us so hopeful every day is also what makes us so resolved every day. Knowing it is possible to win major rights, which we did five years ago in marriage equality. It’s possible to change people’s hearts and minds.”
There are deeply entrenched political forces opposed to progress on LGBTQ rights issues, Beach-Ferrara said – and that must be remembered, even when progress is made.
“It would be a mistake to dismiss those forces,” she said. “But it would also be a mistake to take that as the full picture.”
Johnson agreed, saying the high profile fight for marriage equality – and the historic victory that secured it – woke a lot of Americans up to the movement for LGBTQ rights. But it was far from the end of that struggle.
“Marriage equality is important,” Johnson said. “But there are literally dozens of other things that are more important to LGBTQ people than marriage equality.”
LGBTQ people – particularly transgender people – are fighting to walk down the street without being violently attacked, Johnson said. They are also being pushed out of the workplace and educational institutions, denied health care and insurance coverage.
In May of this year, the U.S. House passed comprehensive anti-discrimination legislation known as The Equality Act, but the Republican-controlled Senate is not expected to take the measure up anytime soon.
Stubborn resistance from conservative NC politicians
Policy Watch has been following the continuing struggle for transgender state employees in North Carolina to get coverage for treatments related to gender dysphoria.
As Policy Watch reported last year, the board of trustees of the state health care plan voted to begin covering treatments for gender dysphoria at the end of 2016, near the end of the term of former state Treasurer Janet Cowell. The move was necessary to comply with the Affordable Care Act. When Dale Folwell came into office in 2017, the Republican opposed the move, calling transition-related care “elective” and “unnecessary.”
The plan’s trustees allowed the coverage to expire at the first opportunity — not renewing it for the 2018 plan year or for 2019.
Blue Cross/Blue Shield of North Carolina has recognized dysphoria as a serious medical issue and covered treatments related to transition, including hormone therapy and gender confirmation surgery. Transgender patients and their doctors have testified before the plan’s board of trustees that the treatment is necessary and life-saving.
Despite that, Folwell has said he does not intend to change the policy until compelled to do so by a court order.
The University of Georgia recently announced it is dropping its exclusion of transgender-related treatments and procedures in its employee health insurance. The change comes as part of a settlement in a lawsuit very similar to one filed in North Carolina earlier this year.
“I would hope we’re going to see the same thing happen in North Carolina,” Johnson said. “It is just common sense. We shouldn’t have to take up taxpayer dollars in North Carolina to force a system that should be fair to everyone to be fair. It’s preposterous.”
Most North Carolinians – and most Americans – already believe that LGBTQ people should be able to hold jobs and have equal access to health care, Johnson said. It’s time for the courts and legislatures to catch up, she said.
“It’s common sense, but we’re in a time that is so polarized that common sense doesn’t always prevail in legal cases,” Johnson said.
State employees can still refuse to participate in the granting of marriage licenses, Johnson said. Though they have gained no political traction, there are also still lawmakers filing bills to defy the U.S. Supreme Court and declare same-sex marriage illegal in North Carolina.
“For some years we’ve seen the polls tipping, even in southern states, on LGBTQ issues,” Johnson said. “One good thing about these Supreme Court cases and celebrating this five-year anniversary of marriage equality is that it brings to the forefront all the things the LGBTQ community still does not have.”
LGBTQ advocates are realistic about the possibility of a loss at the Supreme Court level, Johnson said, but they also know that’s not the end of the fight.
“I’m hopeful that even if we fail at the Supreme Court, we’ll see comprehensive non-discrimination protections passed (in Congress) that include LGBTQ folks, at the federal level,” Johnson said.