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No ‘Safe Harbor’: LGBT Rights Group May Challenge HB 1523 After Bostock Ruling

Campaign for Southern Equality Lead Counsel Meghann Burke said the organization is looking for plaintiffs to file a new challenge against Mississippi’s HB 1523 after the Bostock v. Clayton County ruling, which she said effectively ends certain provisions of the law. Photo courtesy CSE.

Meghann Burke grew teary-eyed on Monday as she read U.S. Supreme Court Justice Neil Gorsuch’s ruling in Bostock v. Clayton County, which affirmed that the 1964 Civil Rights Act protects LGBT people from employment discrimination. She and her wife, Jasmine Beach-Ferrara, are a married couple in North Carolina, where they are raising their son together.

They are also leaders at the Asheville-based Campaign for Southern Equality, a LGBT-rights-centered legal nonprofit that has fought cases on behalf of LGBT people across the South, including in Mississippi. Burke is CSE’s lead counsel, and Beach-Ferrara is its executive director.

Burke told the Mississippi Free Press Wednesday that the Bostock ruling has her and others at CSE eyeing another round against the State of Mississippi in federal court. For a second time, they want to challenge the Mississippi Religious Liberty Accommodations Act, also known as HB 1523, which grants individuals who cite certain religious beliefs about marriage or gender identity the right to discriminate against LGBT people in adoptions, hiring practices, housing, health-care coverage and certain medical services.

“Bostock is effectively going to repeal those provisions of HB 1523 that provide a safe harbor for employers who wish to fire gay, lesbian, transgender, bisexual or queer people who do not conform to their religious beliefs—or their so-called religious beliefs,” Burke said. Her  wife, Beach-Ferrara, also happens to be a United Church of Christ minister.

The attorney said CSE is “immediately looking into” a new challenge against HB 1523, but first they have to find a plaintiff.

“The plaintiff we’re looking for is a gay, lesbian, transgender or gender non-conforming person who was fired for that reason,” Burke said.

‘Because of Sex’

Such a plaintiff should not be hard to find, Burke said, noting that LGBT people have been filing complaints of employment discrimination for decades. After the Obama administration issued an interpretation “that predicted Bostock’s outcome” in 2013, she said, fired LGBT employees began filing such complaints “at a very steady clip.”

“So we know there are people out there who have been fired or experienced adverse employment action because they were gay or transgender. And those charges fit squarely within the Bostock ruling, so those are the folks we are hoping to connect with to make clear in Mississippi that Bostock does repeal those provisions (of HB 1523),” Burke said.

Mississippi lawmakers passed the law in the wake of the U.S. Supreme Court’s 2015 Obergefell v. Hodges ruling that found lesbian and gay people have a right to marry in all 50 states, repealing Mississippi’s law that banned same-sex couples from marrying. A federal court struck down HB 1523 after CSE challenged it in 2016, but the 5th U.S. Circuit Court of Appeals in New Orleans reversed the decision. CSE tried to appeal it to the nation’s high court, but the justices passed, allowing Mississippi’s discriminatory law to take effect.

Gorsuch’s Bostock ruling changed the calculus by settling a debate over the language in Title VII of the 1964 Civil Rights Act, which forbids discrimination in employment “on the basis of race, color, religion, sex, or national origin.” The phrase “because of … sex” necessarily includes gay, lesbian, and transgender people, Gorsuch found.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” wrote Gorsuch, whom President Donald Trump appointed to the court in 2017. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The case involved three LGBT plaintiffs who alleged an employer fired them after learning they were gay or transgender. Attorneys for the employers argued that Title VII does not protect LGBT people from employment discrimination, though, arguing that the drafters of the 1964 law would not have expected anyone to construe the law as covering gay or transgender people.

“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result,” Gorsuch conceded in his ruling. “Likely, they weren’t thinking about many of the Act’s consequences that became apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

Gorsuch also cast doubt on claims that “no one” in 1964 would have expected the legislation to cover LGBT people. In fact, he noted, gay and transgender employees began filing Title VII complaints “not long after the law’s passage.”

‘The Rule of Law Prevailed’

The justice pointed to Title VII’s legislative history. U.S. Rep. Howard Smith, a segregationist Dixiecrat, was the legislator responsible for inserting “because … of sex” into Title VII of the bill. Some of his colleagues suspected he may have done so, Gorsuch noted, “not necessarily because he was interested in rooting out sex discrimination in all its forms, but because he may have hoped to scuttle the whole Civil Rights Act and thought that adding language covering sex discrimination would serve as a poison pill.” 

Some of Smith’s fellow lawmakers at the time suspected that he (incorrectly) thought that enough members who supported employeement protections on the basis of race would consider sex a bridge too far and kill the entire civil-rights bill.

But while Title VII protects people from discrimination on the basis of sex, another key portion of the law does not. Whereas Title VII deals with employment discrimination, Title II deals with discrimination in services, and prohibits discrimination “because of race, color, religion, or national origin in public accommodation, such as hotels, restaurants, and places of entertainment.”

President Donald Trump appointed Neil Gorsuch (left) to the U.S. Supreme Court in 2017. On June 15, the judge defied the Trump administration’s position in Bostock v. Clayton, which he ruled does protect LGBT people from employment discrimination under Title VII of the 1964 Civil Rights Act. Photo courtesy U.S. Supreme Court.

Since Title II does not mention sex, Burke said, Bostock will not affect the parts of HB 1523 that deal with goods and services the way it will affects its employment-related provisions. 

The Mississippi law specifically bars the government from taking “discriminatory action” against people and entities that refuse to provide wedding services to gay and lesbians couples based on “sincerely held religious beliefs or moral convictions” about sexuality, including “photography, poetry, videography, disc-jockey services, wedding planning, printing, publishing or similar marriage-related goods or services; or floral arrangements, dress making, cake or pastry artistry, assembly-hall or other wedding venue rentals; limousine or other car-service rentals, jewelry sales and services.”

The law also says that the government “shall not take any discriminatory action against a person wholly or partially on the basis that the person declines to participate in the provision of treatments, counseling, or surgeries related to sex reassignment or gender identity transitioning or declines to participate in the provision of psychological, counseling, or fertility services based upon a sincerely held religious belief or moral conviction.”

Bostock does not directly implicate those parts of the law, though, Burke told the Mississippi Free Press.

“So we still will encounter a problem with the need to dismantle that statutory regime, because there is no sex provision in the public accommodations act. … HB 1523 is so sweeping, it covers a broad range of topics,” Burke said. “Accommodations is one piece of it, but it also includes employment and adoption—there’s a host of things that are covered.”

Though federal courts struck down Mississippi’s ban on same-sex couples adopting after the Obergefell ruling, HB 1523 guaranteed adoption agencies the right to refuse to adopt to same-sex couples if doing so violated their religious beliefs.

“So I think what Bostock will do is functionally repeal certain subsections of HB 1523, but not necessarily in its entirety,” Burke said.

Even so, CSE will continue fighting for LGBT southerners, she said.

“This was a momentous victory, and their humanity was affirmed by Bostock. Their right to provide for their families, to thrive, to build businesses, to work, was affirmed in Bostock. And certainly, it’s a really significant milestone,” but there’s more work to be done, and we will keep doing it,” Burke said.

In the meantime, the North Carolina-based attorney said that Monday’s ruling is a bright spot that she believes lays the groundwork to make it easier to fight other anti-gay laws in future cases. The tumultuous half-decade that followed the 2015 Obergefell ruling helped Burke appreciate Gorsuch’s words even more, she said.

“Given how the law and politics have evolved over the past several years, it moves you to tears that words still mean what they mean,” Burke said. “The rule of law prevailed.”

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