With the new year coming up, politicians across the country are busily introducing bills with the hope to create new laws promoting their agendas and fulfilling their many campaign promises. In Texas, Republican Senator Bob Hall has proposed S.B. 92—a bill barring any county, municipality, or other group from adopting laws or rules which protect any class not already protected by Texas law.
On it's face, the law could be interpreted as fairly innocuous—at least much as any law forbidding others from preventing discrimination could be innocuous. However, in effect, it is crafted to target laws protecting the LGBT community from discrimination. Texas does not treat LGBT persons as protected from discrimination, thus no city, county or other group would be allowed to do so if the law passed. The law will be voted on, along with dozens of other bills, in Texas' first legislative session of next year—January 2017. A two-thirds vote will turn the initiative into law. It will be voted on alongside bills to abolish the death penalty in Texas and a bill to finally remove from the books the Texas law making it a crime to engage in homosexual conduct, found unconstitutional by the Supreme Court over a decade ago.
S.B. 92 is not the first law of its type. Arkansas, North Carolina and Texas have all passed similar laws. North Carolina did so just this year, convening an emergency session of their general assembly to overturn a Charlotte ordinance barring discrimination against LGBT persons.
Senator Bob Hall has framed the bill as an issue of religious freedom, arguing that everybody should be free to express and practice their religious beliefs at all times regardless of how that impacts others. Critics have argued that, besides preemptively stripping rights from the LGBT community, the law removes autonomy from local government. What's more, they point to the business lost in North Carolina after they passed their version of the bill. Experts have estimated that the law could cost Texas as much as $8.5B and lose as many as 185,000 jobs.
While S.B 92 is a scary prospect for the many LGBT persons living in Texas, the level of protection provided to members of the LGBT community across the U.S. has changed drastically over recent years, mostly in the direction of increasing protection. States and the federal government have both taken steps to change the treatment of LGBT persons under the law.
LGBT Protections Throughout the Nation
Currently, there are 22 states with laws forbidding discrimination based on sexual orientation, gender identity, or both. However, at a federal level no appeals court has ever explicitly extended such protection under Title VII, the federal statute forbidding discrimination by and employer based on a protected class such as race or gender.
The Equal Employment Opportunity Commission, however, has been taking steps of its own on this front over the last several years. The EEOC, a federal agency tasked with enforcing Title VII and other federal workplace discrimination laws, ruled in July of 2013 that the entire agency would be treating sexual orientation as a protected class when it comes to discrimination. Since this ruling, the EEOC has been investigating claims of discrimination based on gender identity or sexual orientation. They have filed two separate amicus briefs (a memorandum of arguments made by a non-party to a lawsuit) arguing that federal courts should treat sexual orientation as a protected class in Title VII discrimination lawsuits. They have also brought two separate federal lawsuits alleging discrimination against homosexual employees on the basis of their sexual orientation.
The EEOC's argument in favor of protection based on sexual orientation is that gender, already a protected class under federal law, includes discrimination against someone for not conforming to traditional gender stereotypes or norms. Thus, because sexual orientation and gender identity buck the trends of gender norms, discrimination based on these traits would violate federal law. This argument doesn't go so far as to describe LGBT as its own protected class but, if federal courts pick up on the position, does provide substantially more protection based on sexual orientation and gender identity.
Changing of the Guard Changing LGBT Protections?
Texas' new bill raises concerns for the LGBT community in the state. However, the truth is that this concern is mirrored across the nation as President-Elect Trump prepares to take office alongside a conservative majority in the house and senate. The question is, how will this changing of the guard impact LGBT protections across the nation?
The EEOC is an independent agency. While it reports to Congress it has quite a bit of discretion in determining its own policies, agendas, and pursuing its own lawsuits. What Congress, and Trump, do have the ability to do is substantially limit the funding the the EEOC receives. This makes it very difficult for them to pursue costly lawsuits which will likely curtail a good portion of the EEOC's recent efforts in filing lawsuits in federal court. This means that it will be more difficult to create case law precedent on the issue of LGBT discrimination. This being said, historically when the EEOC sees its budget cut it focuses its remaining budget on particularly visible and high impact cases. This could mean we may see one big LGBT discrimination lawsuit coming out of the EEOC.
When looking at the states, the last few years have been a story of drawing lines. While many states have moved towards expanding LGBT protections, North Carolina and now Texas show a trend of more conservative states going the opposite direction by outright forbidding such protections. Another consequence of the incoming new administration is new appointments to the Supreme Court. After nearly a year of refusing to even consider any of President Obama's nominees, an even more conservative Congress will have the opportunity to appoint at least one Supreme Court Justice. This will likely leave the Supreme Court more conservative leaning than it has been in nearly a decade. This will almost certainly have an impact on the development of LGBT rights nationwide. However, only time will tell if the country will go the way of S.B. 92 or instead choose to protect the LGBT people all around us.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney At Law