The Impact of Bostock on State Nondiscrimination Protections

In June 2020, the U.S. Supreme Court ruled in the Bostock case that discrimination based on sexual orientation and gender identity were illegal forms of sex discrimination under Title VII of the Civil Rights Act, a federal law that prohibits discrimination in employment. While this decision directly impacts federal employment laws, this decision also has an impact on state nondiscrimination laws and their protections for LGBTQ people.

Just this month, another state nondiscrimination law has been understood to protect LGBTQ people, this time in Texas. In the case of Amanda Sims, who was fired from her job at a community college because of her sexual orientation, the Texas Fifth District Court of Appeals ruled that the state’s employment law’s prohibition on sex discrimination prohibits discrimination because of sexual orientation and gender identity. The court used the same rationale as the U.S. Supreme Court did in Bostock.

MAP’s LGBTQ Equality Maps now track the shifting state nondiscrimination landscape as state courts, civil rights commissions, and attorneys general interpret their state laws in light of the landmark U.S. Supreme Court decision in Bostock.

Twenty-seven states currently lack explicit nondiscrimination employment protections for LGBTQ workers. Yet, in eight of these states, courts, human rights commissions, or attorneys general have interpreted existing sex nondiscrimination laws to be protective of LGBTQ people. These actions have had an immediate, substantial impact on LGBTQ people and their daily lives and send the clear and important message that discrimination against LGBTQ people is unacceptable.

The recent Texas court ruling means that the 647,000 LGBTQ people working in Texas can now file complaints through the state if they experience employment discrimination. Texas joins the seven other states that have also interpreted their employment laws to be inclusive of LGBTQ people: Arizona, Florida, Kansas, Michigan, North Dakota, Pennsylvania, and Nebraska, as shown on our LGBTQ Equality Maps. These actions mean that an estimated 1.4 million LGBTQ workers now have protections under state law.

These state protections are critically important. Federal civil rights laws provide consistent protections across the country, yet they are often narrower than state and local laws. For example, federal employment nondiscrimination law does not cover employees working at small employers with fewer than 15 employees. In addition, state laws can provide an additional means of recourse to residents who are averse to pursuing action federally or simply don’t have the time for the — usually much longer — process.

Nationally there are still about 1.5 million LGBTQ workers without state employment protections (either explicit or through sex discrimination protections like in Texas), and 2.4 million LGBTQ people live in states without nondiscrimination protections in other key areas of life like in places of public accommodation like restaurants and retail stores.

All people in the United States, including LGBTQ people, should be to move through their daily life without fear of discrimination. That’s why advocates continue to push for the passage of the federal Equality Act, which would modernize our nation’s civil rights laws to explicitly prohibit discrimination based on sexual orientation and gender identity, as well as key state protections.

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Movement Advancement Project

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MAP is an independent, nonprofit think tank that provides rigorous research, insight and communications that help speed equality and opportunity for all.