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The struggle at the core of every movement for equality is a right. The right to vote. The right to marry. The right to not be killed. At the core of each is a struggle for respect, to be treated like a human being and to exist without prejudice or discrimination.
Legalizing gay marriage is considered a huge step in favor of LGBTQ+ rights in American history. But people often dismiss the post-legalization discrimination that occurs by assuming that gay people are “equal” now. However, the decision of nine supreme court justices cannot change a longstanding culture of internalized homophobia and discrimination.
On June 15, the Supreme Court of the US made a milestone decision: firing people on the basis of being LGBTQ+ is unconstitutional. This case Bostock v Clayton County, clarified the stipulations of Title VII of the Civil Rights Act, becoming the first national bill to do so. Though it advocates for gender and sexuality rights and ensuring people get the rights they deserve, the bill does not cover all people and situations, which could let discrimination continue.
Bostock v Clayton County began because the Trump administration questioned whether or not Title VII extends the protection of people based on sex to protecting people based on gender identity and sexuality. Title VII, passed in the Civil Rights Act of 1964 prohibits “employment discrimination based on race, color, religion, sex, and national origin”. In other words, people cannot be fired on the basis of things they cannot control.
While the prohibition only mentions “sex”, the interpretation is that it also bans employment discrimination on the basis of sexual orientation and gender identity, but that was not confirmed until the SCOTUS decision in June.
The Bostock v Clayton County decision is as important as the Obergefell v Hodges decision of 2015 which legalized gay marriage. Before this, the LGBTQ+ community had to rely on a “patchwork of state nondiscrimination laws,” and in 25 of the 50 states, there was no protection at all.
Another important aspect of the decision is the grouping together of gender identity and sexual identity rights which will allow future decisions applicable to the entire LGBTQ+community. One issue, however, is how Title VII is applied. By definition, LGBTQ+ people in workplaces of less than fifteen can still be discriminated against and can still be fired.
The Religious Freedom Act of 1993 (RFRA) may call this decision into question. RFRA prohibits the government “substantially burdening a person’s exercise of religion”, which means that those who are religious could theoretically say that their religion does not allow them to hire LGBTQ+ people. RFRA actually supersedes Title VII, operating as a “super statute” according to Supreme Court Justice Neil Gorsuch. But it is unclear as to how much the RFRA interacts with Title VII because that only applies when governments attack religious freedom, such as banning crosses.
The major conflict between the LGBTQ+ community and the government is how religious freedom interacts with human rights because many religions claim that their religious tenets allow discrimination against LGBTQ+ folk. It will be the focus of Fulton v the city of Philadelphia, a case that will examine whether religious (childrens) organizations can reject those ( LGBTQ+ parents for example), who in their view are not aligned with their doctrine.
The case is essentially about whether gay couples can adopt children. Religious rights are constitutionally protected in the Bill of Rights, so what’s at stake is whether religious institutions can manipulate that right to discriminate against others.
But shouldn’t the basic right to exist as a human being be upheld above religious rights?
Religion cannot be used as an excuse to discriminate against entire communities, especially those who are so marginalized. Currently, the Trump administration is trying to roll back medical care for the LGBTQ+ community, which could cost lives, depending on how states respond. Which is why cases like this matter so much. Last year nine Republicans introduced the Fairness for All Act, which prohibits discrimination except when religious groups find it against their doctrine. While it is marketed as a compromise, it could possibly greenlight LGBTQ+ discrimination, making it dangerous.
The government has to explicitly give the community these rights, so people’s livelihoods and lives are not at risk.
A government that risks its people’s lives is a government that has failed its people.
Congress will be the next battleground for LGBTQ+ rights. The Equality Act passed in the House last year but has not come closer to becoming law. It bans discrimination on the basis of sexual orientation/identity in employment, housing, credit, education, public spaces and services, federally funded programs, and jury service. The bill’s sponsor, Rhode Island Democrat Representative David Cicilline is hopeful, as five years ago, such a bill wouldn’t have been heard on the floor, let alone pass the House. Sadly, the bill never made it to the Senate floor.
While people in the Bay Area and other progressive parts of the country may assume that LGBTQ+ people have “equal for all” rights, that’s not the case on a federal level. In the ideal world, LGBTQ+ people would unquestionably have equal rights and never would have needed additional legal protection. We cannot pretend otherwise.
Kaavya Butaney is a sophomore at Los Altos High School in Los Altos, CA. She writes for her school newspaper, The Talon, and loves speech and debate and choir. Kaavya is an intern at India Currents.
Edited by Meera Kymal, contributing editor at India Currents.
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