What Philanthropy Needs to Know about Nondiscrimination Protections for LGBTQ People, the Supreme Court, and Title VII

By: Funders for LGBTQ Issues Staff on October 8, 2019

Today the Supreme Court of the United States hears oral arguments on three cases which will decide whether or not lesbian, gay, bisexual, transgender, and queer people are protected from employment discrimination under existing law (Gerald Lynn Bostock v. Clayton County, Georgia; Altitude Express v. Melissa Zarda; and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission). The Court is being asked whether Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex, includes LGTBQ people. The EEOC and many lower federal courts have long affirmed that LGBTQ people are protected from discrimination based on existing federal law. The cases before the Supreme Court today represent attempts by the current administration and anti-LGBTQ organizations to reverse those protections during a term where abortion rights, immigration, and gun control are also at stake.

Between 2016 and 2017, U.S. foundations invested $13.8 million into securing nondiscrimination protections for the estimated 8.1 million lesbian, gay, bisexual, and transgender people in the U.S. workforce. As a network of foundations and corporations dedicated to increasing philanthropic resources that advance the wellbeing of LGBTQ people, today is a pivotal day for us, our members, and our communities.

It is hard to overstate what is at stake here. If the court rules that LGBTQ people are not protected by federal employment laws, 51 percent of LGBTQ workers – those living in the 27 states without explicit protections – will find themselves unprotected against workplace discrimination. Moreover, this ruling could extend beyond the workplace to enshrine legal discrimination in housing, healthcare, education, credit, and more.

Today also marks the first time the Supreme Court will hear a case involving the rights of transgender people and the decision will set an important precedent about how trans people are treated under the law. A negative ruling could severely undermine the dignity and safety of trans people and others who do not conform to sex stereotypes. Currently, case law says that sex stereotyping (holding pre-conceived ideas of how someone should appear or behave based on that person’s assumed biological sex) is a form of sex discrimination. If the court disrupts this important precedent, it would jeopardize women who are not perceived as feminine enough and men who are not perceived as masculine enough. We could return to a time when women were required to wear skirts and makeup to work, when men were not allowed to access parental leave, and nonbinary people were rendered nonexistent.

Funders for LGBTQ Issues is committed to helping foundations and other donors to understand these cases and the impact potential rulings would have on our communities while also spotlighting opportunities for funders to support LGBTQ people in fighting discrimination.

The Supreme Court will not issue its decisions in these cases until the spring of 2020. But today we call on the philanthropic community to recognize the potential of these cases to roll back the progress on hard-won efforts to ensure nondiscrimination protections to LGBTQ people and anyone else who has been denied opportunity because of who they are. Funders need not wait for the outcome of these three critical cases to take action. Grantmakers can:

  • Fund legal and policy work focused on securing federal nondiscrimination protections and use their institution’s voice to advocate for passage of explicit federal nondiscrimination protections.
  • Support policy efforts towards nondiscrimination at the state-level by funding state and local LGBTQ organizations and engaging with state policy makers.
  • Resource efforts to build power and mobilize communities to advocate for federal and state nondiscrimination protections.
  • Explore funding at the intersections of LGBTQ people affected by all the issues in front of the court, particularly LGBTQ immigrants and reproductive justice for LGBTQ people.
  • Participate in our educational programming for funders interested in supporting the LGBTQ community to fight discrimination in all forms.
  • Join the GUTC Pledge to help build power in the transgender community and create momentum to move forward.

In the coming weeks we will continue to share resources and opportunities to collaborate with, learn from, and strategize with your colleagues and movement leaders. Funding Forward 2020 in Chicago will feature content on these Title VII cases and the role of philanthropy in ensuring that LGBTQ people are able to live free from discrimination.

While we pay close attention to developments around these cases, we are also keeping our eyes on upcoming cases affecting the right to abortion and immigration. We will keep our members and the broader philanthropic field informed about how the outcomes of those cases would affect LGBTQ communities.

Below is a list of resources for you to help explain the Title VII cases.

No matter what comes of these cases, Funders for LGBTQ Issues remains dedicated to securing nondiscrimination protections for LGBTQ people and increasing philanthropic resources that further advance the wellbeing of LGBTQ people.

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