LGBTQ workers are protected, but advocates say more work remains

LGBTQ rights
Joseph Fons holding a Pride Flag, stands in front of the U.S. Supreme Court building after the court ruled that LGBTQ people can not be disciplined or fired based on their sexual orientation June 15, 2020. Photo by Chip Somodevilla | Getty Images

Arizona went from being one of more than two dozen states where it’s still legal to fire someone for their sexual orientation or gender identity to being one of 50 where workplace discrimination against gay and transgendered people is illegal.

But there still aren’t state laws protecting LGBTQ Arizonans from discrimination in housing and public accommodations.

In a landmark 6-3 ruling, the U.S. Supreme Court ruled on Monday that the provision of the 1964 Civil Rights Act that prohibits workplace discrimination “on the basis of sex” protects people who are LGBTQ as well. 

Twenty-one states already have such antidiscrimination laws on the books. But for Arizona, the ruling brings about a substantial change. Prior to Monday’s ruling in Bostock v Clayton County, Arizona was one of 28 states with no workplace protections for LGBT people

“Employment discrimination against people that are gay and transgender happens, and it happens in this state. Prior to today’s Supreme Court ruling, unless you were in Phoenix, Tempe, Tucson, Flagstaff or Sedona, it was not unlawful to discriminate against a person’s sexual orientation or gender identity,” Angela Hughey, president of the LGBT coalition ONE Community, said, referencing a handful of Arizona that already had non-discrimination ordinances preventing discrimination against LGBTQ people.

Attempts to change that in the Arizona legislature, primarily by Democratic lawmakers, have come to naught. 

In 2019, Rep. Daniel Hernandez, a Tucson Democrat who is a member of the legislature’s LGBTQ caucus, and Sen. Kate Brophy McGee, a Phoenix Republican, sponsored legislation to bar disrimination against gay and transgendered people in the workplace, housing and public accommodations. Neither bill received a hearing in committee. Republican legislative leaders did not hear similar bills in the COVID-shortened 2020 session.

Now, at least when it comes to the workplace, LGBTQ Arizonans have legal protections from discrimination. And if employers don’t honor those protections, they have legal recourse to go to court and fight back.

For Tanner Menard, those protections could have meant a lot in many previous jobs. 

Menard is a community organizer for Equality Arizona, an LGBTQ advocacy organization. Because Menard is gender non-conforming and their gender identity is “outside of Western binaries” – Menard is Native American and their gender identity “is informed by my tribal understanding” – they have been fired from some jobs in Arizona and their native Louisiana, and harassed out of others. Often, the only workplaces where Menard hasn’t had to worry about such discrimination has been at LGBTQ groups like Equality Arizona.

“Here in Arizona, there have been times where I have either had to be relatively closeted at my work, because I needed work and I knew that if I were open about it, that I would not maintain my job,” they said.

Other times, Menard has been more open at work about their gender identity.

“I was basically told that I either needed to conform to my assigned gender or leave the job. So, I left the job,” they said.

Menard declined to identify the employers where they’ve had such problems.

Michael Soto, Equality Arizona’s executive director, said many gay and transgendered people worry about losing their jobs or facing discrimination in the workplace. He pointed to a 2018 study by the Human Rights Campaign in which 46 percent of LGBTQ people said they were closeted at work. 

“This is a very real lived experience for LGBTQ people. So many of us remain in the closet in terms of both our sexual orientation and gender identity because we also need to be able to work to support ourselves and our families. And if those two things are at odds, if you can’t be authentically who you are in the workplace, it leads to a lot of complications,” Soto said.

The Supreme Court’s ruling applied only to workplace discrimination. So, while employers can no longer legally fire people for being gay and transgendered under Arizona law, those people are still unprotected from discrimination in other areas, such as housing.

Soto said more protections are needed, and his organization will continue fighting for them in the 2021 legislative session.

“We also know that, because this is a narrow ruling and it’s only about employment, there are a lot of aspects of life where we still need to make sure LGBTQ people are fully protected and have equal opportunity and access,” he said.

More protections are also needed at the federal level, advocates say. On Friday, just days before the Supreme Court ruling, President Donald Trump’s administration eliminated a prohibition on discrimination against transgendered people in health care. The U.S. Department of Health and Human Services added those protections under the Obama administration. 

Phoenix, Tucson, Tempe, Flagstaff and Sedona have all enacted nondiscrimination ordinances that prohibit discrimination against LGBTQ people. But the Arizona Supreme Court last year ruled that Phoenix’s ordinance couldn’t force a Christian-owned company, Brush and Nib Studio, to make custom wedding invitations for a same-sex couple.

The ruling was extremely narrow. It applied only to one company, and only to that one product, which it said was protected First Amendment speech. The court said the ruling wouldn’t permit Brush and Nib’s owners to refuse to sell other products to LGBTQ customers. 

Despite its narrowness, Hughey is concerned that the ruling could pave the way for other discriminatory practices.

“It opens up the opportunity, I think, for folks to push the ruling … and see if they can’t find a way to have broader implications,” she said. 

Many large private sector employers have also stepped up to provide protections that the federal government and states like Arizona haven’t given to employees. According to the Human Rights Campaign’s corporate equality index, more than 90% of Fortune 500 companies in the United States have policies barring discrimination based on sexual orientation or gender identity. 

Hughey said ONE Community found that about 90% of Arizona’s 50 biggest employers have similar policies as well.

Organizations that have historically opposed adding workplace discrimination or other protections for LGBTQ people to Arizona law were critical of the Supreme Court’s ruling.

The Center for Arizona Policy, a Christian social conservative advocacy group that has championed anti-gay measures, accused the Supreme Court of legislating from the bench and usurping the powers of Congress by changing the Civil Rights Act.

“Over the next few days, our policy team will continue to analyze the decision to determine its impact on Arizona law and specifically on faith-based employers like churches, schools, and para-church ministry,” Cathi Herrod, president of the Center for Arizona Policy, said in a statement on the organization’s website.

The Alliance Defending Freedom, the Scottsdale-based Christian legal advocacy organization that represented Brush and Nib Studio, said civil rights laws that reference sex were intended to create equal opportunities for women, and that redefining the word to include gender identity “will create chaos and enormous unfairness for women and girls in athletics, women’s shelters, and many other contexts.”

“Allowing a court or government bureaucrats to redefine a term with such a clear and important meaning undermines those very opportunities—the ones the law was designed to protect,” Alliance Defending Freedom wrote on its Twitter account.