7 years after Obergefell ruling LGBTQ+ equality is still in jeopardy

June is Pride Month, and there is a lot to celebrate. Seven years ago, on June 26, 2015, the U.S. Supreme Court ruled that same-sex couples have the right to marry under the Constitution’s Fourteenth Amendment’s Equal Protection and Due Process Clause, legalizing marriage equality across the country.

The outcome of Obergefell v. Hodges was the culmination of a grassroots movement that spanned more than five decades, and it seemed to be a watershed moment for LGBTQ+ rights in America. However, as we enter Pride Month 2022, the liberties of gay, lesbian, bisexual, transgender and queer Americans still remain under significant threat.

According to the Human Rights Campaign, state legislatures passed 17 anti-LGBTQ+ laws in 2021, the most that have been passed in recent history. This year, hundreds of state bills have already been introduced across the country, and several have been passed. While these bills proliferate, the Equality Act — the federal nondiscrimination law pushed by President Biden — languishes in the U.S. Senate after being passed by the House of Representatives in February 2021.

Anti-transgender legislation on the rise

Transphobia isn’t new, but the legislative targeting of transgender Americans that has occurred over the past few years is unprecedented. In 2020, state legislatures introduced 79 separate bills barring transgender people from accessing everything from bathrooms to athletic programs to health care. That number jumped to 147 in 2021, and around 280 have already popped up in 2022.

Most of these laws are aimed at transgender youth and are touted by proponents as protections for women, parents and children. In reality, however, these bills further marginalize a population that already faces disproportionate levels of discrimination and bullying at school, work and home.

Even more alarming, Texas Gov. Greg Abbott (R) in February directed state agencies to investigate parents who allow their transgender children to receive gender-affirming medical care. Abbott made the move after the Texas attorney general released an opinion claiming that hormone therapy and gender-transitioning surgery qualify as “child abuse” under state law. Both actions ignore the evidence-based medical advice of organizations such as the American Academy of Pediatrics and the American Medical Association. The legality of the directive is being challenged in court.

Classifying medical treatments for transgender kids as “child abuse” denies trans youth access to needed health care, and also attempts to criminalize their parents for providing love, understanding and support.

Studies have shown that LGBTQ+ youth who are rejected by their families during their teenage years are more likely to attempt suicide, experience severe depression, use illegal drugs, engage in unprotected sex and become homeless than peers who are accepted and embraced by family members.

The Equality Act

On June 15, 2020, the Supreme Court ruled in Bostock v. Clayton County that sex discrimination protections listed under Title VII of the Civil Rights Act of 1964 also forbid job discrimination based on sexual orientation or gender identity. The ruling in that case upheld lower court rulings handing equality advocates another landmark victory.

Until that 6-to-3 decision, it was still legal for employers to fire employees for being lesbian, gay, bisexual, transgender or queer in around half the states. In 2022, Americans living in 29 states can still be denied things like housing or credit because of who they are or whom they love.

That’s why a federal nondiscrimination law is desperately needed.

The Equality Act would amend the Civil Rights Act to explicitly ban discrimination based on sexual orientation and gender identity in employment, housing, education, credit, federally funded programs, public spaces and jury service. It would codify protections that could otherwise be left to interpretation by courts or agencies. The law would also expand protections for women, people of color, people with disabilities and people of faith.

Pride and justice

Progress has been made. The U.S. Census Bureau reports that nearly 60 percent of the nation’s 1 million same-sex couple households are married. Multiple polls find public support for LGBTQ+ equality is at an all-time high. Despite this, many lesbian, gay, bisexual, transgender and queer people must still fight for the same fundamental rights afforded to millions of other Americans under the law.

When he was president, Barack Obama frequently recited Martin Luther King, Jr.’s soaring quote on equality, “The arc of the moral universe is long, but it bends toward justice.” However, in a 2016 television interview, former U.S Attorney General Eric Holder clarified that “the arc only bends toward justice because people pull it toward justice. It doesn’t happen on its own.”

It’s past time for our lawmakers to pass the Equality Act and further pull the arc toward justice for LGBTQ+ Americans

Justice Leah Ward Sears is a former chief justice of the Georgia Supreme Court and has written many court decisions on related to civil rights and LGBTQ+ rights. She is currently a partner in the law firm of Smith, Gambrell & Russell, LLP.