Over the last few years, state laws allowing discrimination against LGBTQ people have sprouted up like toxic mushrooms after a foul storm. Legislatures in all but three states have at least considered anti-LGBTQ bills since 2020. Almost 240 were proposed in the first three months of 2022 alone, up from about 200 for all of 2021. In 2018, there were fewer than 50. The proposed laws would exclude LGBTQ issues from school curricula, allow discrimination based on religious beliefs, and limit the ability of trans people to play sports, use bathrooms consistent with their gender identity, or receive gender affirming health care.
Good News in Bostock v. Clayton County
The one bright light in this bigoted wilderness has been the U.S. Supreme Court’s June 2020 decision in Bostock v. Clayton County, Georgia, in which the Court held that the anti-discrimination provisions in Title VII of the Civil Rights Act of 1964 apply to discrimination based on gender identity. Hallelujah! Justice Gorsuch wrote the opinion, on which Justice Roberts joined him, so even with the addition of Amy Coney Barrett in place of Ruth Bader Ginsberg, there should be five votes against backsliding to the bad old days.
Religious Limits on Bostock
But now for the bad news. In an earlier blog, posted on July 27, 2021, we cautioned that Justice Gorsuch explicitly refrained from addressing how the Religious Freedom Restoration Act (“RFRA”) might provide an exception to the rule protecting LGBTQ people. We noted that he expressed “deep concern” about preserving the free exercise of religion. Several subsequent U.S. District Court decisions now suggest that fear about a RFRA loophole was not unwarranted. Indeed, the loophole could become big enough to eliminate Bostock for many smaller businesses.
Some Bad Lower Court Cases
Perhaps the worst case is Bear Creek Bible Church v. EEOC, a November 2021 decision from the Northern District of Texas in which the Court held that Braidwood Management, Inc., a “Christian-owned business” and one of the plaintiffs, would not be liable under Title VII for refusing “to employ an individual because of sexual orientation or gender expression, based on religious observance, practice, or belief.” Braidwood did not fall within the religious exception in Title VII, but it did qualify under RFRA. Citing the Hobby Lobby case, the Bear Creek Court held that if “an employer sincerely believes that the conduct demanded by the state violates its religious convictions, then courts are forbidden to question the reasonableness of that belief.”
Another case, decided by a U.S. District Court in North Dakota only a few weeks ago on May 16, 2022, held that religious belief can be grounds for denying gender affirming medical care to employees. In Christian Employers Alliance v. EEOC, the court held that the plaintiff was entitled to an injunction against enforcement of regulations and an Executive Order that would require “Christian employers to “provide health insurance coverage for gender transitions services; [compel] them to affirm gender transitions; and [prevent] them from maintaining views and facilities in accordance with their religious beliefs.” The plaintiff was a Christian membership ministry that “exists to unite and serve Christian nonprofit and for-profit employers who wish to live out their faith in every-day life, including in their homes, schools, ministries, businesses, and communities.”
Impact On LGBTQ Employment Options
Appellate courts have yet to address the issues raised in cases like Bear Creek and Christian Employers, but it seems likely such a case eventually will reach the Supreme Court. If that happens, the Court could very well curtail the holding in Bostock. For LGBTQ people, that likely would limit employment choices. One significant silver lining is that publicly traded or widely held corporations cannot easily claim to hold religious beliefs, and thus would remain subject to Bostock. Moreover, as LGBTQ people come to be more widely accepted, bigoted employers may have trouble competing for talent with more progressive employers. Of course, none of that makes discrimination by the less enlightened any more acceptable, and members of the LGBTQ community sadly may need to seek legal counsel to protect their rights.