In a major victory for gay and transgender workers in Texas and nationwide, the U.S. Supreme Court ruled Monday that federal civil rights law prohibits employers from discriminating against workers on the basis of their sexual orientation or transgender identity.
Texas is among a majority of states that do not offer explicit protections for LGBTQ communities in employment, housing or public spaces, though some of the state’s biggest cities have passed some protections. And the ruling carries particular weight in a state where proposals to expand those protections have historically been dead on arrival at the GOP-dominated Texas Legislature.
Jason Smith, a Fort Worth employment attorney who represented Stacy Bailey, a Mansfield ISD art teacher who was put on leave after showing students a photo of her wife, called the far-reaching ruling a pleasant surprise because it “covers everybody in the rainbow.” He had not dared hope for such a comprehensive opinion, he said.
“I can’t tell you how many phone calls we’ve had at our law office from LGBTQ folks who we had to tell the courts were going to turn their case out,” Smith said.
Now, he said, “we can do something for them.”
[…]
Many federal courts, including those in and governing Texas, had ruled that Title VII did not protect workers from discrimination on the basis of sexual orientation.
The state’s first LGBTQ Caucus, founded in 2019, announced earlier this summer that it has bipartisan support for a comprehensive non-discrimination law for LGBTQ Texans. Long a legislative push from some Democrats, that proposal has never gone far at the Capitol in Austin, facing particular resistance from Lt. Gov. Dan Patrick and the socially conservative Texas Senate.
Now the fight moves to the state Capitol, where lawmakers said they will fight for similar protections in housing and other spheres. Wesley Story, a communications associate for Progress Texas, said it’s time “to expand those protections to other areas including education, housing, and health care.”
“Equal protection for LGBTQ employees is now the land of the land!” tweeted state Rep. Erin Zwiener, D-Driftwood and a member of the LGBTQ Caucus. “I’ve never been more happy to strike a piece of legislation off my bill list for next session.”
Zwiener added that she looks forward to fighting for other protections not covered by Monday’s ruling, including in housing and other areas.
As noted in that tweet, while this ruling offers protections at the workplace, it does not address things like housing. Plus, federal lawsuits are expensive and time-consuming, and thus limited as a way to redress discrimination complaints. That was one of the rationales behind local anti-discrimination ordinances, and the reason why a statewide non-discrimination law is still necessary. This was a big step forward, but it’s hardly the end of the road.
Let’s also be clear that the opponents of equality, once they are done wailing and gnashing their teeth, are going to set about doing everything they can to limit the effect of this ruling. They’re still trying to minimize the Obergefell ruling, so you can be sure this one will be in their sights as well. As long as the likes of Dan Patrick and Ken Paxton hold power, there will be danger. Celebrate the win, but don’t let your guard down. Slate and the Chron have more.
I have a question about this. Does this effect prior cases or incidents? The lesbian art teacher in Mansfield was mentioned. Does the proscription on ex post facto laws preclude her from using this decision for more litigation, or can she and others like her use this decision to dredge up the past?
Bill,
You’ll have to give your buddy Neil a call on that one…
https://www.usgovernmentmanual.gov/Agency.aspx?EntityId=gUdL/Fb57lg=&ParentEId=+klubNxgV0o=&EType=jY3M4CTKVHY=&AspxAutoDetectCookieSupport=1
Congress shall make no ex post facto law. The states are also not allowed to do so.
SCOTUS doesn’t make law. It looks at existing law and says what it means.
So yes, older cases can be reopened and litigated on the basis of new judicial precedent.
That’s how SCOTUS discovering that the 2nd amendment applied to the states in 2010 worked. That’s how this decision will work.