◼ BUSINESS Bloomberg Businessweek June 24, 201920
ILLUSTRATION BY BRÁULIO AMADO. PHOTOGRAPH BY KA XIAOXI FOR BLOOMBERG BUSINESSWEEKEqualityAct,whichtheysaybetterhighlightsand
addressesthefullspectrumofdiscriminationLGBTQ
peoplestillface.Ina surveythisyearbythePublic
ReligionResearchInstitute,69%ofAmericans—
includingmajoritiesinall 50 states—expressedsup-
portforlegislationprotectingLGBTQpeoplein
hiring,publicaccommodations,andhousing.
ButinCongress,liketheSupremeCourt,thefate
ofanti-discriminationprotectionsnowrestswith
conservatives.Republicanscommanda 53-47major-
ityintheSenate,andevenif Democratsweretotake
backthatchamberandthepresidency,advancingtheEqualityActwouldrequireeitherabolishingthe
Senate’s60-votefilibusterruleormusteringenough
GOPsupporttoreachthe 60 votes. The same day the
Democratic-controlled House passed the Equality
Act, Mike Lee, a Republican senator from Utah and a
Judiciary Committee member, called it “counterpro-
ductive” legislation at a time when “Americans are
becoming more tolerant every day” anyway.
Conservative groups including the Heritage
Foundation, the nonprofit that Trump said helped
develop his roster of potential Supreme Court picks,
are hoping LGBTQ activists get rebuffed by both the
judiciary and the legislature. If Congress did pass the
Equality Act, says Emilie Kao, who directs Heritage’s
Richard and Helen DeVos Center for Religion & Civil
Society says, it could infringe on management pre-
rogatives such as the ability to dictate what’s worn
by an employee, including those who have “a belief
that they are of the opposite sex.”
Oregon Democrat Jeff Merkley, who sponsored
the Equality Act in the Senate and is working to
secure GOP support, says he hopes the Supreme
Court’s coming LGBTQ cases will help draw
national attention to the bill: “The issue of having
full opportunity in our society, of having full free-
dom, shouldn’t depend on the whims of a conser-
vativecourt.”�JoshEidelsonand policy director for Lambda Legal Defense and
Education Fund, which pursues LGBTQ rights cases.
“When a trans woman was acceptable at work pre-
senting as a man but was fired when she presented
her true gender, which is female, she was fired for
being the wrong kind of woman.”
Citing past precedent that discrimination for not
conforming to sex stereotypes is a form of illegal sex
discrimination, several federal circuit courts have
embraced such arguments, creating a patchwork of
protections covering their jurisdictions. Next year
the justices could either extend those protections
nationwide or wipe them out. So in states that hav-
en’t passed laws prohibiting anti-LGBTQ bias but
have been covered by federal appeals court prece-
dents restricting it—including Florida, Georgia, and
Indiana—a Supreme Court ruling could give compa-
nies that don’t want LGBTQ people in the workplace
a green light to fire them. “There won’t be a question
mark anymore,” says Beall. “And because of that, I
could see a whole lot more people discriminating.”
President Trump’s appointment of Justices Neil
Gorsuch and Brett Kavanaugh, which made the
Supreme Court more conservative than it’s been in a
generation, could turn the tide. “My instincts suggest
that this is an uphill battle,” says Anthony Michael
Kreis, a visiting professor at Chicago-Kent College of
Law who’s helped draft pro-LGBTQ legislation. The
prospect of a Supreme Court loss raises the stakes
for action in Congress, where Democratic allies have
tried unsuccessfully for decades to pass a law that
would explicitly ban anti-LGBTQ bias. “I don’t have
a lot of confidence that the court will protect LGBTQ
Americans from discrimination,” says Rhode Island
Democratic Representative David Cicilline.
On May 17 the House finally passed the Equality
Act, a sweeping bill Cicilline sponsored that would
beef up the Civil Rights Act by prohibiting sexual ori-
entation and gender identity bias in employment,
as well as in education, credit, federal programs,
housing, jury service, and public accommodations
such as hotels and restaurants—even if the Supreme
Courtrulesthattheoriginallawdidn’tdoanyof
thosethings.Thebill’ssupportersincludemore
than 200 large employers such as Amazon.com,
Apple, Coca-Cola, and Marriott. Facebook Inc.
Chief Operating Officer Sheryl Sandberg said in an
online post that “no one should face discrimination
because of who they are—and we hope Congress
passes this legislation.”
After proposing narrower bills and fighting
among themselves on questions such as whether
to pursue the rights of gay employees separately
from those of trans workers, liberal lawmakers and
activists unified in 2015 behind the more-ambitiousTHE BOTTOM LINE More than half of U.S. states allow some
form of employment discrimination against LGBT workers. GOP
opposition means Congress is unlikely to change that.