The Supreme Court LGBTQ Ruling was the Result of Decades of Work. We Have More to Do.
The law often operates as the apparatus that facilitates instead of prevents the untimely deaths of so many in historically excluded and oppressed communities – including the LGBTQ community. The deaths of both Aimee Stephens and Don Zarda, whose workplace discrimination cases the Supreme Court decided posthumously in their favor on Monday, are a case in point. Aimee, who died of complications related to kidney disease just weeks ago and Don, who died in an accident, did not live to see the outcome of their cases, in which the highest court ruled that their livelihoods — and, thus, in America today, their health insurance — shouldn’t be predicated on their sexual orientation or gender identity.
So after living for decades under a patchwork of state and local laws and lower court opinions, the entire country now has protections against discrimination at work if they are LGBTQ. For me, it was a galvanizing reminder of how sometimes advocates can still find hope in our work despite the compromises inherent to the law, and be reinvigorated for and invested in the transformative work for justice that lies again.
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Decades of work — in the streets, in legislatures and in the courts — went into the simple, clear, unequivocal ruling by the court that, yes, it is illegal to fire or otherwise discriminate against someone for being LGBTQ, which was written by Trump-appointed Justice Neil Gorsuch and joined by Chief Justice John Roberts and the court’s four liberals.
The entire architecture of the Trump administration’s explicit attacks on LGBTQ people came crumbling down in an instant — an instant built on the lives and labor of so many advocates leading up to the breathtaking win.
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Nothing happens in law without the resistance and organizing of people in the streets, in their homes and families, in their schools and communities, within prisons and jails, and at workplaces. Monday’s decision, for example, came one day after more than 15,000 people gathered in Brooklyn to rally for Black Trans Lives, and less than two weeks after hundreds marked the beginning of Pride and the Black Lives Matter movement by gathering at New York City’s Stonewall Inn to call for justice for Nina Pop, a Black trans woman, and Tony McDade, a Black trans man killed by police. It also came the same week that Riah Milton was killed in Ohio and the remains of Dominique “Rem’Mie” Fells were found in Philadelphia — both Black trans women.
And just last Friday, the Trump administration rushed out a rule designed to allow discrimination in health care settings against trans people under the Affordable Care Act. The entire 336-page rule — which read much like author J.K. Rowling’s now-infamous anti-trans screed — was premised on a notion of sex discrimination that the Supreme Court has now wholly rejected; Monday’s decision should essentially nullify the rule entirely as being outside the agency’s authority.
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Whether they like it or not, the Trump administration is not the final word on the meaning or scope of federal statutes that prohibit discrimination because of sex: the Supreme Court is and they have spoken. Thus, the many actions that the Trump administration has taken to systemically attack LGBTQ people — particularly trans youth — are completely neutralized. From efforts to target trans youth in schools, to those designed to push trans people out of homeless shelters, to those intended to deny us health care, every single one of the Trump administration’s anti-trans policy actions are now likely as legally enforceable as Rowling’s anti-trans ponderings.
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OPINIONGorsuch’s LGBTQ Supreme Court vote is a historic liberal win — for now
The sweeping victory for LGBTQ workers is a moment of hope that feels particularly meaningful in the context of the widespread organizing and resistance to anti-Black state violence, as well as the widespread mobilizing in defense of Black trans lives. We won this case because so many Black and Brown people fought and died to give us the chance to demand justice before the highest court in the United States and from each other as Americans.
But in the same day that the Supreme Court ruled in favor of LGBTQ workers, it rejected cases that would have evaluated the legal doctrine of qualified immunity that effectively allows police to act with impunity and, in the coming weeks, the court may issue harmful decisions on the law allowing undocumented people brought to the U.S. as children to remain here legally (known as Deferred Action for Childhood Arrivals) and abortion and contraception. All of these will have disproportionately negative effects on communities of color; in fact, the qualified immunity doctrine is largely understood as a product of white supremacy and central to the culture of impunity that allows the police to get away with disproportionate acts of violence against Black and Brown people.
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The future, then, will be a test of how we build on this victory together. Employment protections are crucial but only the beginning, because ours is not a call for equality but for justice. And justice means showing up for the unhoused, the undocumented, the incarcerated, and the ill. Without decriminalization of sex work, without an end to discrimination based on past criminal conviction, without defunding the police, and without reinstating and greatly expanding DACA, Monday’s win will be hollow. The work for, as the pledge our children recite in school (often in violation of the First Amendment) promises, “justice for all” continues — and, in this moment of great transformation, a new kind of work begins.