High Court Ruling on LGBT Protections Offers a Small Respite From Decades of Discrimination

In 2015, as pictured here, the White House stood illuminated with rainbow colors in commemoration of the Supreme Court’s ruling to legalize same-sex marriage in Washington. Five years later, this past Friday, the Trump administration would finalize the reversal of Obama-era protections for transgender people against sex discrimination in health care. (AP Photo/Pablo Martinez Monsivais)

In 1975, Australian Anthony Sullivan, legally married to American Richard Adams by a rogue Colorado clerk, applied for U.S. citizenship with his newly minted marriage licenses in hand.

What he got instead was a letter denying him that right.

“You have failed to establish that a bona fide marital relationship can exist between two faggots,” the Department of Justice INS director wrote, denying Sullivan’s request.

While certainly not the first or the last time homophobia would be used in a government action in America, it solidified my understanding of how I, as a gay man, was viewed by my country when I learned about the exchange.

But Monday’s U.S. Supreme Court decision will help change that — while obstacles still exist, Justice Neil Gorsuch’s straightforward interpretation of Title VII claims by three fired LGBTQ employees has helped put a stake in the heart of one of this country’s oldest pastimes: legal discrimination against queer folks.

I learned about Sullivan and Adams when I was the editor of a small, LGBTQ publication here in Richmond, Virginia. I was fresh out of journalism school and, in the wake of the 2008 crisis, media jobs were still in short supply. So in the fall of 2012, I took a break from my pizza delivery shift to meet with the editor of a local alt-monthly who told me they were buying the well-known, albeit more as a bulletin board than a news source, publication GayRVA (a colloquial acronym for Richmond).

I am a gay man, and I’d never really hidden it, and while I jumped at the chance to use my training in the real world, I — and my parents — couldn’t help but wonder how it might impact the rest of my career. Would I forever be known as a gay journalist? Would “normal” publications hire me considering I worked for a gay publication? Would I not be hired because a future employer just didn’t like gays?

I accepted the job and it changed my life forever — and for the better.

George W. Bush and his evangelical allies put the work in to make sure being gay was nearly impossible in most states. Existing law allowed you to fire, not hire, deny housing or services to someone for being gay, bi, lesbian or transgender. Virginia’s ban on same-sex marriage had passed with over 60% of the vote less than a decade earlier. And attempts to change these laws were laughed at or seen as stones around a campaign’s neck.

And I was now the face of a publication hoping to change all that.

Luckily President Barack Obama, who’d just won re-election, was an ally, though slowly at first. It was actually then-Vice President and current Democratic presidential hopeful Joe Biden who first offered his support for sexual minorities.

“I am absolutely comfortable with the fact that men marrying men, women marrying women and heterosexual men and women marrying one another are entitled to the same exact rights, all the civil rights, all the civil liberties,” he told NBC’s “Meet the Press” in 2012.

Only a few years earlier, Josh Block got his gig as senior staff attorney at the ACLU’s LGBT and HIV Project.

While Block was obviously making impacts on these issues nationally, I had more than a few opportunities to cross paths with him long before his team would be a part of Monday’s Supreme Court ruling, changing the lives of LGBTQ Americans forever.

“From the very beginning, people filed cases saying being fired for being gay or transgender violated Title VII,” Block told me in a phone interview Monday afternoon. He said the same argument that made up Justice Neil Gorsuch’s opinion, that LGBTQ people are protected under the “sex” class of the Federal Civil Rights law.

“Some courts ruled in their favor, but a majority of courts had turned those claims aside,” he said of earlier versions of the same fight. “Every decade the statute’s been in effect they’ve argued this.”

Block’s fairly no-nonsense. When I pressed him on how today’s opinion made him feel he was tempered — “I felt tremendous” — and he recited for me the same argument he’s been making for a decade in an eloquent enough tone that I almost felt embarrassed for tearfully tweeting the good news earlier in the morning.

The attorney has good reason to stay level headed: The fight’s long from over. While Monday’s ruling specifically impacts the workplace, he said it won’t be hard to link Gorsuch’s words to policies like Title IX, the Fair Housing Act and others.

“It’s inescapable,” he told me. “I don’t see any way a court is going to find those statutes aren’t governed by the same textual holding as this one.”

The Title IX reference hit home for me. The first time I saw Block argue in court was in support of Gavin Grimm, a transgender high school student from rural Virginia whose use of the men’s restroom lead to the creation of a policy banning him from doing so.

“It’s not deciding it either way,” he said of Gorsuch’s opinion. “[Gorsuch] could have closed the door, but he left it wide open and provided the analytic framework to [find out.]”

Block pointed back to the Obama’s administration for helping LGBTQ protections get this far.

While even liberal judges told fired gay or trans people they sympathized with their plight, they were unsure the statute could be read in a vindicating way. But then the Equal Opportunity Commission released a memo in 2014 specifically stating sexual orientation and gender identity qualified under sex protections and things started to change.

Judges began siding with those fired because of who they loved or how they identified. After the legalization of same-sex marriage, it became more apparent that the law would somehow, eventually, need to catch up so folks like myself wouldn’t be fired for having their same-sex significant other’s picture on their desk.

But then Trump won.

“It was like a dark cloud settled in,” Block said.

Within a month of Trump taking office, then-Attorney General Jeff Sessions rescinded an Obama-era policy, saying “prior guidance documents did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX.”

The first of many blows to come, that hit Block because it specifically kicked Grimm’s case back to the lower courts.

“We went from a feeling of hope and possibility, to thinking LGBTQ and other minority groups would have a long fight to hang on to the protections we have,” he said.

Another arm of Trump’s assault involved judicial appointments. Block started recognizing the names of judges as they got approval from the Republican majority Senate: They were the names of lawyers who sat opposite him as he fought for LGBTQ rights.

“It’s been a long and at times demoralizing four years,” Block said.

That’s why Monday’s opinion matters so much. Just last week, Trump finalized a plan to roll back LGBTQ protections under the Affordable Care Act. But Block says Gorsuch’s words could help stifle that effort.

How else will Monday’s opinion impact the lives of LGBTQ folks across the country? We’ll find out soon enough — and as long as Trump is in office, Block will have his work cut out for him.

Remember Sullivan and Adams and the DOJ denying their citizenship application, over 40 years ago, because two “faggots” can’t be married? Trump’s DOJ is fighting for the right to do the same thing today.

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