If you can’t kill LGBTQ+ equality in the court of public opinion, try killing it with the tedium of court. Or at least that’s what plaintiffs in the Supreme Court’s latest corrosive cases are attempting to do.
Next week, the Supreme Court will decide two cases (Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce) in which the plaintiffs urged the court to overturn the Chevron doctrine, a principle created by the landmark Chevron USA. v. NRDC decision that empowered federal agencies to interpret ambiguous federal statutes. Since the 1984 ruling, Chevron deference has been a foundational component of administrative law, although perhaps unknown to the general public.
The Chevron doctrine empowers federal agencies to implement regulations that uphold the civil rights of millions of Americans, in particular the LGBTQ+ community. Congress allows agencies to clarify and delineate how civil rights laws are enforced because it is simply impossible for Congress to consider and legislate against all possible forms and mechanisms by which discrimination may occur on an ongoing basis (they can barely keep the government funded through the fiscal year). Instead, it allows federal agencies to elucidate how specific laws will be interpreted and how violations will be negotiated to ensure the law is enforced and remedied fairly and transparently. Countless federal civil rights laws – Americans with Disabilities Act, the Voting Rights Act, and the Fair Housing Fact – are enforced this way.
Without the Chevron doctrine, American civil rights law falls apart.
Pictured above: Todd Sears with Supreme Court plaintiff Jim Obergefell at the Protecting Marriage Event hosted by Wells Fargo.
In the military, the Pentagon currently protects the right of transgender individuals to serve openly – which they do at 2.3 times the rate of their cisgender counterparts. By allowing the Department of Defense, rather than the courts or Congress, to administer LGBTQ+ equality in the military, the Pentagon can ensure that its nondiscrimination policy is enforced effectively and does not compromise readiness.
For example, commanders are ordered to approach a soldier’s gender transition with the same operational considerations as any other necessary medical procedure – ensuring that operational considerations are balanced with the soldier’s right to receive adequate care. Imagine if every soldier seeking medical treatment needed to sue for approval – such a tedious and convoluted process would be a lose-lose situation for the judiciary and the military, and would surely waste millions in taxpayer dollars. Every American benefits when agencies with particular expertise are allowed to interpret gaps and ambiguities in the laws they are charged with implementing, providing those interpretations are reasonable.
When the Supreme Court ruled in Bostock v. Clayton County that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating against that person based on sex – the United States Department of Education was able to clarify that Title IX protections apply to LGBTQ+ students with wide-ranging consequences.
Pictured above: Kevin Jennings (CEO, Lambda Legal) speaks at the 2023 US Summit.
Under the clarified regulations, LGBTQ+ students are insulated from discriminatory disciplinary actions, such as dress code violations, which are often enforced at a higher rate against queer students by targeting their gender expression. The policy protects students from harassment and bullying, which if unchecked by educators, can be tantamount to discrimination, and even can limit the scope of book bans if they are targeted toward LGBTQ+ students and create a hostile learning environment.
The Bostock ruling also allowed the Department of Housing and Urban Development (HUD) to clarify that protections under Title VII apply to the LGBTQ+ community. Without these safeguards realtors could refuse to show houses to trans buyers, landlords could choose not to rent to gay couples with their children, and housing providers could deny access to potential dwellers based on HIV/AIDS status.
Chevron deference also empowers the Equal Employment Opportunity Commission (EEOC) to protect LGBTQ+ Americans in the workplace. EEOC clarifies that is illegal to fire, refuse to hire, or demote employees because of their identity or because a customer might have an issue with their identity. Trans employees have the protected right to dress in accordance with their gender identity. And, just like in schools, unmitigated harassment based on sexual orientation or gender identity is an illegal form of employment discrimination.
Pictured above: LGBTQ+ activists protest in front of the United States Supreme Court.
The federal agencies that clarify how civil rights law will be applied also regulate and remedy discrimination. By allowing experts in these agencies to work out the details in their respective fields, both plaintiffs and defendants in cases of discrimination can be assured that the law will be enforced evenly and consistently. Moreover, because the policies are written out in great detail, enterprising individuals and businesses can proactively review the specifics relevant to them to ensure they are in compliance.
For forty years, Chevron has permitted federal agencies to iron out the details to enact civil rights law. We have created a fair and transparent system that ensures the law will be applied equally. To dismantle Chevron would be to declaw the force of any civil rights legislation in the United States.
As global leaders in the business community, your voice is an essential component in the defense of LGBTQ+ equality and civil rights across the United States. As the LGBTQ+ community faces ongoing challenges from the judicial sphere, we rely on business leaders worldwide to stand up and demand robust protections for our hard-won freedoms.
Sincerely,
Todd Sears (Founder & CEO, Out Leadership) & Kevin Jennings (CEO, Lambda Legal)
Here’s what you need to know this week…
#1
Across the United States, judicial rulings pose significant risks to LGBTQ+ equality.
Pictured above: Protesters rally in support of LGBTQ+ students in Kentucky.
As the Biden Administration expands Title IX protections to safeguard the rights of LGBTQ+ students, a federal judge in the Eastern District of Kentucky has blocked its implementation in six states. In the ruling, Judge Reeves rejected the rationale from the Department of Education, which applies the findings in Bostock v. Clayton County (which found that LGBTQ+ employees were protected from workplace discrimination) to students.
Another judge in Louisiana has blocked the implementation of the protections in four other states, leaving the rights of LGBTQ+ students in Louisiana, Mississippi, Montana, Idaho, Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia hanging in the balance.
#2
In the fight for justice, Out Leadership commemorates Juneteenth.
Pictured above: Kamala Harris, the first Black Vice President of the United States, celebrates Juneteenth at the National Museum of African American History and Culture.
This week, Americans nationwide celebrated Juneteenth, the federal holiday commemorating the end of slavery in the United States. A portmanteau of the words “June” and “nineteenth,” the holiday marks the final enforcement of Abraham Lincoln’s Emancipation Proclamation in Texas by Major General Gordon Granger on June 16, 1865, as the Civil War came to a close. The Emancipation Proclamation was only enforceable in states that had seceded from the Union – chattel slavery in the United States would fully end on December 6th, 1865 when the 13th Amendment was ratified.
Black Americans have been celebrating Juneteenth since 1866, and the holiday was nationally recognized in 2021 when President Joe Biden signed the Juneteenth National Independence Day Act into law.
Since the beginning of the LGBTQ+ rights movement, heroic Black leaders have been at the center of the fight for a more just and equal society. Out Leadership honors the many Black LGBTQ+ Americans whose fearless sacrifices at the helm of the LGBTQ+ community have afforded countless rights to our community. From Bayard Rustin and Marsha P. Johnson to Laverne Cox and Audre Lorde, the contribution of Black Americans to the fight for LGBTQ+ equality has been immeasurable.
#3
Thailand becomes the first nation in Southeast Asia to legalize same-sex marriage.
Pictured above: Celebrants march in the Bangkok Pride Parade in June.
The Thai Senate approved a bill this week to legalize same-sex marriage, in a monumental victory for LGBTQ+ rights. The bill passed with overwhelming support, with only four members voting in opposition. The bill is expected to receive a formal endorsement from the King, soon after which it will become law.
The law projects a powerful message to Thai residents, tourists, and global business leaders, indicating that Thailand is an open and welcoming place, to live, visit, and work. LGBTQ+ leaders hope that Thailand’s move will encourage more countries in Asia to legalize same-sex marriage.
Currently, same-sex marriages are legally performed in just two other countries in Asia – Taiwan and Nepal. In addition, Israel (which does not perform civil marriages) recognizes same-sex marriages performed abroad.
#4
Your Out Leadership membership directly supports LGBTQ+ victories worldwide.
Out Leadership’s global coalition promotes LGBTQ+ equality in every place where our members do business, and your Out Leadership membership directly underwrites this worldwide advocacy work. As an Out Leadership member, you directly support the global voice of business that helps move the needle forward for monumental victories like marriage equality in Thailand.
In Thailand, Out Leadership leveraged local partners to access insights regarding the status of the same-sex marriage bill in Parliament. Out Leadership and our partners publicly underscored the significant challenges the bill would face in the Thai Senate. As a contributing voice on behalf of the global business community, we sought to help persuade a number of Thai senators who were privately unsure about the bill in order to complement the robust and ongoing grassroots advocacy already occurring in Thailand.
To help contribute toward the movement for marriage equality, Out Leadership Founder & CEO Todd Sears penned an op-ed for the Bangkok Post, urging Thai lawmakers to adopt the bill by emphatically emphasizing the countless economic benefits marriage equality would bring to Thailand.
#5
Colorado Springs shooter pleads guilty, avoiding death penalty.
The shooter who killed five people and injured nineteen others at Club Q in Colorado Springs, Colorado pleaded guilty to federal hate crimes and was sentenced to 55 life terms in prison. The murderer was sentenced under an Obama-era hate crimes law named partially for Matthew Shepard, the gay man whose murder in Laramie, Wyoming set off a national firestorm regarding LGBTQ+ rights.
The perpetrator declined to apologize or otherwise comment to the victims and their families. In the largely conservative Colorado town, Club Q was viewed as an LGBTQ+ haven.