NEW REPORT: State Preemption and the Threat to Progress and Equality

North Carolina’s HB2 was a terrible bill for many reasons. Not only did it ban transgender people from accessing restrooms, it also prevented local cities from (1) protecting their residents from discrimination and (2) from raising the local minimum wage. How?

The state legislature reversed a local law protecting LGBT people and prevented any other city in the state from protecting LGBT people or raising the minimum wage, through a tactic called “preemption.” This tactic is part of an increasingly common strategy by state legislatures throughout the country to limit local progress on a wide range of issues, from the minimum wage and paid leave to pro-immigrant policies and LGBT-inclusive nondiscrimination ordinances. Although the reasoning behind current state preemption efforts can vary, the impact remains the same: tying the hands of local lawmakers and preventing them from providing the protections they know match their residents’ values and are needed in their communities.

MAP’s latest report, The Power of State Preemption: Preventing Progress and Threatening Equality, shows the spread and impact of these efforts, both across the country and across a wide range of issues including LGBT equality. This report was developed in partnership with A Better BalanceEquality Federation, Family Values @ Work, and the Local Solutions Support Center.

In the absence of state leadership to protect LGBT people from discrimination, local ordinances have been instrumental stepping stones toward statewide nondiscrimination protections. Yet, anti-LGBT activists have leveraged preemption efforts to target LGBT equality in at least two key ways:  hindering local nondiscrimination ordinances (often by targeting transgender people and restricting restroom access), and preventing cities from banning harmful conversion therapy practices used against LGBT youth.

 

However, state preemption isn’t only an LGBT issue. More than 20 states have preemption laws that prevent cities from increasing their local minimum wage or from guaranteeing local workers paid sick leave. Nine states forbid cities from passing sanctuary city ordinances or taking other similar measures to protect their immigrant residents–and in 2017 alone, 33 more states considered similar bills preventing pro-immigrant policies. When preemption is used in this way–to set a maximum rather than minimum level of protections–there are drastic consequences for cities and states alike, including:

  • Leaving residents open to discrimination
  • Placing special interests and profits over local residents
  • Hurting workers, and especially low-income communities
  • Limiting cities’ abilities to create diverse, thriving local economics
  • Hamstringing local officials’ ability to do what is right for their cities

Two New Rulings Affirm LGBT Discrimination is Prohibited Under Federal Law

 

 

 

 

 

 

Discrimination based on sexual orientation and gender identity is sex discrimination.

So says two federal courts in the span of one week. On February 28, 2018, the 2nd Circuit Court of Appeals issued a ruling in the case of Zarda v. Altitude Express. The Court found that Title VII, a federal law, protects people from being discriminated against in the workplace because of their sexual orientation. More specifically, the Court found that employment discrimination on the basis of sex includes discrimination on the basis of sexual orientation.

And then on March 7, 2018, the 6th Circuit Court of Appeals ruled in the case of a funeral home director who was fired after telling her employer that she was transitioning from male to female. The case, Stephens v. R.G. & G.R. Harris Funeral Homes, affirmed previous rulings from the 6th Circuit that discrimination based on gender identity was prohibited discrimination under Title VII’s prohibition on sex discrimination. The funeral home also claimed that they were exempt from the law because of their religious beliefs, and the Court rejected that claim.

MAP updated its Title VII explainer to reflect these rulings—in which the the 2nd Circuit Court became the second federal court of appeals to make such a ruling in a sexual orientation case.

So, what does Title VII cover, and why is this important to LGBT people? What does sex discrimination have to do with discrimination against LGBT people?

Title VII is a federal civil rights law that protects people from being discriminated against in employment because of their sex, race, religion, and other characteristics. Federal law does not explicitly list “sexual orientation” or “gender identity” as protected categories, but—as shown in our updated infographic—many federal courts and agencies argue that discrimination on the basis of “sex” covers LGBT people anyway. Here’s why.

When someone is discriminated against for being LGBT, that discrimination is a form of sex discrimination because “but for” their sex, they would not face such discrimination. Take the example of a lesbian being fired after being seen holding hands with her wife. If she were a man, she would not be fired. “But for” her being a woman, she would not have experienced that discrimination. The same is true for workers are who are seen as qualified until they begin a gender transition and then are discriminated against for being transgender. “But for” their gender, they would not have faced such discrimination.

Title VII’s prohibition on discrimination based on sex is not only about one’s sex, but also about sex stereotypes and whether one adheres to those stereotypes. The Supreme Court has held that illegal discrimination on the basis of sex includes discrimination on the basis of sex stereotypes and whether a person adheres to those stereotypes. For example, discrimination based on sexual orientation rests on the stereotype that men are or should be attracted only to women, and that women are or should be attracted only to men. Similarly, gender identity discrimination is sex discrimination because it is rooted in views that transgender or gender nonconforming people don’t fit the idea of how a man or woman “should” be. Discriminating against an employee who fails to conform to stereotypes in the workplace, including hair style and style of dress, is discrimination based on sex because the discrimination is rooted in stereotypes about how men and women should appear, act, and dress.

And protections under Title VII are vital for LGBT people because they face frequent discrimination. For example, one-quarter of LGBT people reportedpersonally experienced discrimination at work in the past year alone because of their sexual orientation or gender identity, and 27% of transgender people said they had been fired, not hired, or denied a promotion in the past year.

The positive decision in Mr. Zarda’s case in the 2nd Circuit Court and in Aimee Stephen’s case in the 6th Circuit are extremely important for LGBT people around the country. In many states, as well as under federal law, there are no explicit protections for LGBT people in the workplace.

These decisions strengthen the growing number of judicial decisions recognizing that protections against sex discrimination include protections for LGBT people.

Donate here to support MAP as we continue to track and support ongoing court cases and conduct research to speed equality for LGBT people!