Editor’s Note: Samantha Allen is a journalist and author of the books “Real Queer America: LGBT Stories from Red States” and “Love & Estrogen.” The views expressed here are the author’s. Read more opinion on CNN.
For LGBTQ Americans like myself, this week is whiplash-inducing.
Tuesday, the Supreme Court heard oral arguments in three cases – two of them bundled together – that could determine whether LGBTQ people are protected under federal civil rights law. As CNN reported, the court’s four liberals appeared sympathetic to the idea that the federal ban on sex discrimination covers LGBTQ people, while Justice Neil Gorsuch expressed concern that this interpretation could lead to “massive social upheaval.”
Depending on where Gorsuch and a relatively quiet Justice Brett Kavanaugh land, the Supreme Court could reaffirm hard-won legal victories for LGBTQ people or erase them.
Meanwhile, as our rights hang in the balance, nine Democratic candidates for president will take the stage at CNN’s LGBTQ town hall Thursday, not just to affirm that they support LGBTQ people, but to prove exactly how much they do. If last month’s LGBTQ Presidential Forum – hosted by the advocacy group GLAAD – was any indication, Democrats seeking the Oval Office are eager to court the LGBTQ vote, staking out progressive positions on issues such as transgender health care, sex education, blood donations and more.
So, how did we get here? How did we arrive at this seemingly paradoxical moment in which nine justices are weighing a question that should have been settled long ago – while nine candidates for president compete to present the most comprehensive vision of an LGBTQ-inclusive future? Are we living in two different realities?
Not really. The truth is there is strong majority support for LGBTQ protections in this country, but political gridlock has prevented them from being specifically written into federal law.
According to polling conducted by the Public Religion Research Institute (PRRI), 69% of Americans support legislation that would prohibit discrimination on the basis of sexual orientation and gender identity. That includes majorities in every state – including states such as Mississippi and Alabama that are often seen as conservative strongholds – and a majority of Republicans as well.
Most Americans are in favor of LGBTQ protections. That’s a fact. The idea that there would be “massive social upheaval” if these protections were enacted, whether through the judiciary or the legislature, is simply out of step with the public consensus.
But what’s concerning is that almost half of Americans believe federal legislation already expressly protects LGBTQ people from discrimination, as Reuters reported earlier this year, based on the results of a Reuters/Ipsos poll conducted with the Williams Institute at the University of California at Los Angeles.
Cultural acceptance of LGBTQ people in this country may be increasing to such a point that Americans – at least those who aren’t tuned into the latest judicial happenings – may assume that legal equality must have already happened at some point. (Not so, or else this Supreme Court hearing wouldn’t have been necessary.)
The legal reality is messy, so some confusion is understandable. About half of states explicitly ban anti-LGBTQ discrimination and half don’t. Despite several attempts to pass the federal-level Equality Act, which would add categories such as sexual orientation and gender identity to the Civil Rights Act of 1964, that bill has not become law. (The House passed it for the first time this year, but it has only one Republican sponsor in the Senate, and besides, the Trump administration opposes it.)
In the absence of absolute clarity from Congress, LGBTQ advocates have argued – with considerable success – that the existing ban on sex discrimination in Title VII of the Civil Rights Act of 1964 applies to LGBTQ people. They argue that firing someone for being attracted to people of the same gender – or for identifying with a gender other than the one they were assigned at birth – is tantamount to sex stereotyping.
In fact, LGBTQ advocates have racked up enough rulings shoring up that logic that the US Equal Employment Opportunity Commission – as noted on the federal agency’s website – “interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.” (Even the conservative Gorsuch told an LGBTQ advocate during oral arguments that the case would be “close” given the text of Title VII.)
That hasn’t stopped the Trump administration from actively working to undermine that interpretation. In one of the highest-profile LGBTQ cases before the Supreme Court this week, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, the Department of Justice filed a brief arguing against that more expansive interpretation of Title VII. (The other two cases deal with whether Title VII covers sexual orientation.)
The Harris case involves a transgender woman named Aimee Stephens who was fired from a funeral home after she came out. Stephens secured a favorable ruling from the 6th Circuit Court of Appeals, but lawyers for funeral home owner Thomas Rost, described in their petition as “a devout Christian,” asked the Supreme Court to overturn it.
Because of Rost’s beliefs, many advocates have framed (and many in the media have gone along with it) the cases before the Supreme Court this week as a matter of religious freedom versus LGBTQ rights.
But that framing too easily leads to a false equivalence: PRRI polling shows that majorities of “all major religious groups in the U.S.” support legislation that would ban employment discrimination against LGBTQ people – and yes, that includes a majority, however slim, of white evangelicals, 54% of whom told PRRI that they support such laws.
What we’re talking about with these cases is something much different from religious freedom versus LGBTQ rights. We’re talking about anti-LGBTQ organizations leveraging a viewpoint that isn’t the majority opinion in any religious group in the country to stop more than 11 million LGBTQ Americans from gaining protections that half of our countrymen assume we already have. It’s a strategy that depends on ignorance, apathy and a Brett Kavanaugh whose track record and relative silence Tuesday leave many who favor LGBTQ rights worried.
That’s why half of the job of the Democratic candidates at CNN’s Thursday night LGBTQ town hall will be to spell out this situation as plainly as possible for viewers. Americans need to know so much more than just who supported same-sex marriage first. That’s in the past. They need to know how much further LGBTQ Americans have to go – and what each candidate will do to help the community get to that not-too-distant future. They need to know how many states lack LGBTQ protections and why federal action is necessary now.
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This week began with the threat of the Supreme Court holding LGBTQ rights back; it needs to end with the potential future president pledging to propel them forward.