Need for Consistent and Reliable LGBT Rights

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Gender Law Newsletter FRI 2024#3, 01.09.2024 - Newsletter abonnieren

USA: CONSTITUTIONAL LAW

Spring 2024

Regina L. HILLMAN, The Battle Over Bostock: Dueling Presidential Administrations & The Need for Consistent and Reliable LGBT Rights, in: JGSPL 1/2023, pp. 1-99.

In a judgement of 15 June 2020 Bostock v. Clayton County (hereinafter «Bostock judgement»), the Supreme Court has held that employment discrimination on the basis of sexual orientation and gender identity is covered by the protections against employment discrimination «because of sex» under Title VII of the Civil Rights Act of 1964. The author of this article explains that before this judgement, LGBT employees had no protection in more than half of the states from such employment discriminations (p. 74). However, the reach of the Court judgement is controversial (pp. 4-5) and the Court has not adressed all LGBT-related issues of Title VII (p. 74). The author explains that since the Court judgement, many protections have come from the current presidency and could therefore change after the elections of 2024 (p. 6-7). She therefore pleads for a broad codification of the Bostock judgement in order to maintain the current LGBT protections (p. 7).

After a brief review of this judgement (I), the author explains the impact of the judgement on employment law (II). She then describes the presidential treatment of the LGBT community and the use of presidential orders to provide LGBT rights and protections before and after the Bostock judgement (III). She explains that LGBT rights secured by presidential initiatives (pp. 44-49) had been systematically withdrawn under the Trump presidency (pp. 49-65) until the Biden presidency undertook to systematically restore them and to add new rights (pp. 66-74). Based on these findings, she stresses the obstacles to stable LGBT protections (IV). She therefore proposes a solution for consistent and reliable LGBT protections (V): a federal codification providing a broad application of the Bostock judgement, including on issues left open by these judgement (pp. 90-94) or, as a better alternative, an amendment of Title VII of the Civil Rights Act of 1964 providing the protections from the Bostock judgement and more LGBT protections beyond this Title VII (PP. 95-97).

Direct to the article (https://digitalcommons.wcl.american.edu)