ABOVE: Employment Non-Discrimination protest in May, 2010. (Washington Blade file photo by Michael Key).
An independent, bipartisan U.S. agency is set to deliver to President Trump on Wednesday a report calling on Congress to “immediately enact a federal law” against anti-LGBT workplace discrimination, although lawmakers are unlikely to act any time soon given the current makeup of Congress and the long history of stalling on the issue.
The U.S. Commission on Civil Rights details in the 154-page report the history of discrimination against LGBT people and the lack of non-discrimination protections for LGBT people in federal law, citing a 2015 hearing the agency held on the issue.
“LGBT individuals often face lower wages, increased difficulty in finding jobs, promotion denials, and/or job terminations due to their sexual orientation or gender identity,” the report says. “Studies have found that anywhere from 21 to 47 percent of LGBT adults faced employment discrimination because they were gay or transgender.”
Twenty states and D.C., the report notes, have laws barring anti-LGBT employment discrimination and growing number of courts are interpreting the prohibition on sex discrimination under Title VII of the Civil Rights Act of 1964 to apply to LGBT people. The U.S. Seventh Circuit Court of Appeals, the report notes, this year became the first federal appeals court to determine sexual-discrimination in the workplace amounts to sex discrimination under current federal law.
But the report concludes these measures are insufficient in comparison to an explicit federal non-discrimination law barring anti-LGBT discrimination in the workforce.
“Some federal courts have concluded that the existing federal statutory protection against discrimination based on sex, under Title VII of the Civil Rights Act of 1964, includes within its protection discrimination based on sexual orientation and gender identity,” the report says. “Other federal courts have disagreed. These inconsistent interpretations result in different protections available to individuals based on their jurisdiction, and it is not clear when the Supreme Court will resolve the dispute.”
Efforts to enact LGBT non-discrimination protections in the federal law have stalled for decades. In years past, LGBT advocates have sought to pursue federal non-discrimination protections through passage of the Employment Non-Discrimination Act. But since 2014, the Equality Act, which would amend the Civil Rights Act of 1964 to ensure more comprehensive protections for LGBT people, has been the chosen vehicle.
The report has five recommendations: Congress should “immediately enact a federal law” barring anti-LGBT discrimination in the workforce; U.S. agencies should issue guidance and policies outlining protections for LGBT workers, specifically transgender people; Congress should appropriate funds necessary to enforce civil rights laws; the religious exemption in any LGBT non-discrimination law should be the same as exemptions in existing civil rights law; and federal agencies, such as the U.S. census, should collect data on anti-LGBT workplace discrimination.
The United States Commission on Civil Rights is comprised of eight individuals who serve six-year terms: Four appointed are by the President, and four by Congress. The current chair is Catherine Lhamon, who was appointed by Obama and served during his administration as assistant secretary for civil rights at the Education Department. No Trump appointees serve on the commission.
The conclusions in the report aren’t unanimous. One of the congressionally appointed commissioners, Gail Heriot, a law professor at University of San Diego, disagrees with its conclusions. Another commissioners also appointed by Congress, Peter Kirsanow, a partner at Benesch, Friedlander, Coplan & Arnoff, argues LGBT issues aren’t within the commission’s jurisdiction.
The letter of transmittal indicates the report will be sent to Trump, Vice President Mike Pence, House Speaker Paul Ryan (R-Wis.) and Senate Majority Leader Mitch McConnell (R-Ky.). The Washington Blade sent a request to comment on report to the White House as well as Ryan and McConnell’s office.
In 2000, Trump said in an interview with The Advocate he supports amending the Civil Rights Act of 1964 to include sexual orientation. But Trump has never addressed whether he still supports that idea during his presidential campaign or his presidency, nor whether he’d also support amending the law to include transgender people.
Meanwhile, Trump’s administration has been hostile to LGBT workplace rights. The U.S. Justice Department has argued Title VII of the Civil Rights Act doesn’t apply to gay workers and rescinded an Obama-era memo asserting the law prohibits anti-trans discrimination.
