Our firm has fought for LGBTQ rights for many decades.  It is wonderful to share good news about the expanding civil rights of this community!

Fifty-one years ago, the Stonewall Riots erupted in New York City after police entered a gay bar and began to arrest and assault patrons of the bar.  Since that time, LGBTQ activists and advocates have fought to extend rights to members of the LGBTQ community.  Victories include Lawrence v. Texas, 539 U.S. 558 (2003), when the Supreme Court held that laws criminalizing private homosexual activity were unconstitutional in 2003, Windsor v. U.S., 570 U.S. 744 (2013), when the Supreme Court case ruled that the Defense of Marriage Act was unconstitutional in 2013, and Obergefell v. Hodges, 135 S.Ct. 2584 (2015), when the Supreme Court ruled in favor of our Cincinnati clients, Jim Obergefell and John Arthur, finding that the Constitution protects the fundamental right of same-sex couples to marry.  In the middle of Pride Month, as we near the five-year anniversary of Obergefell, the Supreme Court has again acted to protect the rights of the LGBTQ community in its landmark decision, Bostock v. Clayton County.

On Monday, the Supreme Court ruled in Bostock v. Clayton County, that Title VII of the Civil Rights Act, which prohibits discrimination in employment on the basis of race, color, religion, sex or national origin, also prohibits discrimination on the basis of gender identity and sexual orientation.  Writing for a 6-3 majority, Supreme Court Justice Neil Gorsuch wrote that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  In effect, the Court has interpreted Title VII discrimination on the basis of sex to necessarily include discrimination on the basis of sexual orientation and transgender status. 

Although the Equal Employment Opportunity Commission (“EEOC”) has found that transgender employees must be given access to bathroom facilities corresponding to the employee’s gender identity, Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015),the Court declined to address the impact of its holding on the issue of access to bathroom facilities for transgender employees, or how doctrines protecting religious liberty will interact with the protections of Title VII.  Those will be battles for another day. The Bostock ruling does not cover discrimination in places of public accommodation.

Title VII covers employers with 15 or more employees.  The Ohio Civil Rights Act covers employers with four or more employees.  We believe that Ohio court will adopt Bostock as they enforce the Ohio’s antidiscrimination laws as well:  “[F]ederal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S. Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112.” Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 196 (1981).  This is because “Ohio’s own antidiscrimination laws found in R.C. Chapter 4112 are modeled after Title VII.”  Greer-Burger v. Temesi,  116 Ohio St.3d 324, ¶ 12 (2007). Here, the provisions are analogous.  Title VII prohibits discrimination “based on… sex” and does not define sex.  R.C. 4112.02(A) prohibits discrimination “because of… sex.”  Sex is not defined.  R.C. 4112.01.  Ohio should follow the Title VII law regarding the definition of sex.

The best and most comprehensive protection for LGBTQ civil rights will still depend on passage of pending legislation in both the U.S. Congress and the Ohio Legislature

Authored by Vincent Walker, University of Cincinnati Law Student, and Gerhardstein & Branch Law Clerk.

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