X

Despite court victory, LGBT boosters gird for more fights in Ga.

The U.S. Supreme Court on Monday handed the LGBTQ community a major civil rights victory, ruling that federal law prohibits discrimination against gay and transgender employees in the workplace.

For weeks, Rachel Mosby barely slept on Sunday nights.

She knew that any Monday in June could bring a decision that could change her life. Any Monday, the U.S. Supreme Court could empower her to be herself.

When the calls started coming nonstop on the morning of June 15, she said, she didn’t just think about how the high court’s decision would weigh on her own workplace discrimination lawsuit. She said she thought of all the gay and transgender people who had lost their jobs over the years after they started living as their authentic selves.

Former Byron, Ga., fire chief Rachel Mosby poses for a photograph in her Decatur home on June 29, 2020. Mosby, who is transgender, filed a discimination suit against her former employer earlier this year. STEVE SCHAEFER FOR THE ATLANTA JOURNAL-CONSTITUTION
Former Byron, Ga., fire chief Rachel Mosby poses for a photograph in her Decatur home on June 29, 2020. Mosby, who is transgender, filed a discimination suit against her former employer earlier this year. STEVE SCHAEFER FOR THE ATLANTA JOURNAL-CONSTITUTION

The justices' 6-3 ruling — that employers cannot fire LGBTQ workers because of their sexual orientation or gender identity — was an unexpected decision that, for the first time, extended workplace protections to transgender people like Mosby.

“I was in disbelief at first and then pretty ecstatic,” said Mosby, who filed a lawsuit after she was ousted from her job as fire chief in the tiny town of Byron, in the heart of Middle Georgia’s peach country. “There’s a lot of validation that goes with that, a recognition for expressing who we are.”

Legal analysts say the sweeping ruling might give a big legal lift to Mosby’s suit, which was filed in the U.S. District Court for Georgia’s Middle District, and others like it.

But, even as gay rights advocates celebrate the victory, many say more barriers stand in the way of full equality for LGBTQ Georgians. Some raised warnings about the potential for a “religious liberty” fight returning to the Legislature next year.

“Ultimately, the best answer is to have legislation in place that explicitly protects members of the LGBT community,” said Jeff Graham, executive director of Georgia Equality. “That’s the best way to ensure that there are no gaps, that we don’t see changes of opinion as the makeup of the Supreme Court may change in the future.”

Local actions

Over the last two decades, as the gay rights movement made major strides across the U.S., Georgia stayed behind the curve.

It was one of 13 states that still had a same-sex marriage ban in 2015, when the Supreme Court required states to recognize such unions.

Since then, Georgia has remained one of only three states without a broad, state-level civil rights law protecting employees from discrimination based on factors like sex, race, religion or national origin, according to the National Conference of State Legislators. The state does outlaw discrimination based on disability and age.

Georgia is one of five states that does not explicitly ban discrimination in public accommodations like restaurants and hotels. And until last month, when it passed hate crimes legislation, the Legislature had never approved any sort of protections for the state's LGBTQ population.

Eight municipalities around metro Atlanta have acted in recent years to fill the void, passing city ordinances to end bias in sectors such as employment, housing, social services and public accommodations.

The most recent was East Point. Its city council unanimously approved an anti-discrimination policy hours after the Supreme Court ruled on the matter last month.

“Advancing equity, inclusion and social justice is the cornerstone of who we are as a community and serves as our north star,” said Mayor Deana Holiday Ingraham. “As we continue forward on our journey, this ordinance is one more people-focused step that demonstrates we live our values and walk it like we talk it.”

Other cities around the state, from Columbus to Tucker, are considering ordinances of their own.

One of the biggest overhauls is being mulled in Savannah, where Mayor Van Johnson recently appointed a task force to examine local policies and determine where there’s room for more inclusivity.

He’s committed to signing off on a nondiscrimination ordinance “that has teeth” by the end of the year, he said. Johnson also has directed the task force, dubbed Proud Savannah, to mull more symbolic actions, from celebrating World AIDS Day and Transgender Day of Remembrance to hoisting a rainbow flag above city hall.

“As the citizens begin to see more LGBT-affirming literature, flags and things that show us for who we are, then the culture of that (city) changes and we can change the legislation with ease,” said Candace Hardnett, senior pastor of Savannah’s Agape Empowerment Ministries and a member of the task force.

Legislative fights

LGBTQ advocates are still encouraging localities to take matters into their own hands, but they say state and ultimately Congress will need to step in to enact more uniform protections.

“Georgia consistently ranks among top states in which to do business. But, if we don’t have that consistency and those protections for all folks, from a hate crimes perspective, to nondiscrimination protections overall, to health access and safety, then we are not going to attract and retain top tier talent,” said Chris Lugo, executive director of the OUT Georgia Business Alliance.

The holy grail for many gay rights proponents is for Congress to pass the Equality Act, which would codify federal civil rights protections for the LGBTQ community. The Democratic-controlled House cleared the legislation last summer – with Georgia’s delegation voting along strict party lines – but the proposal has languished in the Republican-led Senate.

That’s brought increased attention to the November elections, when Democrats are hoping to wrestle control of the White House, U.S. Senate and Georgia statehouse from GOP control.

Jeff Graham, right, executive director of Georgia Equality, leads supporters carrying boxes of postcards into then-Gov. Nathan Deal’s office on March 2, 2016. Representatives from gay rights groups delivered copies of 75,000 emails to state leaders urging them to defeat so-called religious liberty legislation they believed would legalize discrimination. BOB ANDRES / BANDRES@AJC.COM
Jeff Graham, right, executive director of Georgia Equality, leads supporters carrying boxes of postcards into then-Gov. Nathan Deal’s office on March 2, 2016. Representatives from gay rights groups delivered copies of 75,000 emails to state leaders urging them to defeat so-called religious liberty legislation they believed would legalize discrimination. BOB ANDRES / BANDRES@AJC.COM

For decades, LGBTQ groups have been on the defensive under the Gold Dome.

One of their biggest fights came in early 2016, when both chambers of the General Assembly passed a "religious liberty" bill that would have allowed faith-based businesses to deny services to those who violated an owner's "sincerely held religious belief." It also would have preserved their right to fire employees who weren't in accord with those beliefs. Opponents said the measure amounted to legalized discrimination, and then-Gov. Nathan Deal ultimately vetoed it, saying it didn't reflect Georgia's welcoming image.

The measure has been reintroduced in subsequent legislative sessions but hasn't advanced far, and GOP leaders have since avoided new fights over gay rights. This year, the Legislature didn't act on bills that would have allowed adoption agencies to turn away prospective LGBTQ parents and introduced criminal penalties for doctors helping children transition genders.

Still, some advocates worry that, when the General Assembly reconvenes in 2021, such legislation could be resurrected by religious conservatives energized by the recent Supreme Court ruling.

Philip Singleton, a commercial pilot and U.S. Army veteran, has won the recently vacated Newnan-area House seat. Submitted photo.
Philip Singleton, a commercial pilot and U.S. Army veteran, has won the recently vacated Newnan-area House seat. Submitted photo.

State Rep. Philip Singleton suggested that could very well be the case.

The Sharpsburg Republican authored a bill last year that would have required transgender athletes to compete in sporting events aligning with the gender on their birth certificates, which was bitterly fought by Georgia Equality and others. Singleton said he's "sure there will be several pieces of legislation next year to make sure that, while we respect the freedoms and rights of every Georgian, we do not inadvertently trample the rights of our women, or those who want to practice their God given right to worship how they choose." Opponents of bills expanding protections for transgender people have raised safety concerns about women sharing locker rooms with transgender women and questioned the fairness of women's sporting events if transgender women can compete.

Mike Griffin, a lobbyist for the Georgia Baptist Mission Board, said his group does not agree with the Supreme Court’s ruling on workplace discrimination. He also said that the Legislature needs to pass a state-level version of the federal Religious Freedom Restoration Act, which President Bill Clinton signed in 1993, to protect people with deeply held religious beliefs.

“While there should be no mistreatment of any human beings, we do believe that churches and religious institutions have the right and responsibility to employ those who will represent them in accordance with their doctrinal beliefs,” Griffin said. “This is a First Amendment right.”

Legal challenges

In the short term, the biggest changes are likely to be felt in the courts.

Employment lawyers say they expect a wave of new workplace bias cases to be filed by gay and transgender people who, for years, were turned away by many attorneys.

Because Georgia is an “employment at-will” state, lawsuits are often the only legal avenue available to workers who believe they’ve been discriminated against, said Joyce Kitchens, an Atlanta-based employment lawyer.

The new Supreme Court case expands the definition of what’s considered discrimination under the 1964 Civil Rights Act.

Attorneys expect legal battles to be fought across the nation over how broadly the ruling can be applied, from federal housing programs to food banks, credit and public accommodations, as well as the types of exemptions afforded to religious organizations and smaller businesses.

The ruling also could have implications for several suits currently being argued in front of Georgia judges, including a major federal case related to bathroom access for transgender high school students. The case's lawyers were recently asked to file new briefs detailing how the Supreme Court ruling will affect their arguments.

Gerald Lynn Bostock, photographed during an interview in his home. The case of former Clayton County child welfare official Gerald Lynn Bostock is among three the Supreme Court is set to examine. The U.S. Supreme Court will consider a metro-Atlanta case as it weighs whether gay, lesbian and transgender workers are protected under federal anti-discrimination laws. In what could be a landmark ruling, the high court will decide whether Title VII of the Civil Rights Act of 1964 extends workplace protections to members of the LGBT community. Bob Andres / robert.andres@ajc.com
Gerald Lynn Bostock, photographed during an interview in his home. The case of former Clayton County child welfare official Gerald Lynn Bostock is among three the Supreme Court is set to examine. The U.S. Supreme Court will consider a metro-Atlanta case as it weighs whether gay, lesbian and transgender workers are protected under federal anti-discrimination laws. In what could be a landmark ruling, the high court will decide whether Title VII of the Civil Rights Act of 1964 extends workplace protections to members of the LGBT community. Bob Andres / robert.andres@ajc.com

For Gerald Bostock, the Doraville man whom Supreme Court justices ruled in favor of last month, his discrimination case against Clayton County now goes back before a federal district court. The suit, in which Bostock alleges he was fired from his job as coordinator of the county's Court Appointed Special Advocate program because he is gay, was dismissed by that court not long after it was filed in 2016.

“We look forward to going ahead with Gerald’s case now that we have a decision affirming that we do indeed have a cause of action and a right and remedy under the law to pursue,” said Bostock’s lawyer Tom Mew.

Steven Teske, Clayton County Juvenile Court's chief judge, recently told The Atlanta Journal-Constitution that a 2013 audit, which found that thousands of county dollars were improperly spent under Bostock's watch, was the reason for Bostock's firing, not his sexual orientation.

And then there’s Mosby, who said she was terminated in June 2019 as Byron’s fire chief not long after she began coming to work as a woman in early 2018. Mosby had held the job for more than a decade and started medically transitioning in 2016.

Mosby filed a federal lawsuit this spring alleging that she was fired due to the city's "discriminatory animus based on her sex, gender identity, and notions of sex stereotyping."

Byron Mayor Michael L. Chidester said the city does not comment on ongoing litigation. But in Mosby’s termination letter, City Administrator Derick Hayes cited poor job performance, including Mosby’s failure to maintain a fire investigator certification and to release new business licenses for approval in a timely manner, and does not mention her gender transition.

Mosby, who now lives in Decatur, said in a recent interview that the new Supreme Court ruling “doesn’t erase implicit bias” and systematic discrimination against LGBTQ people. But she doesn’t see how it can hurt her own case.

“Certainly, a favorable opinion does put great wind in our sails,” she said.

The Associated Press contributed to this article.

What is Bostock v. Clayton County, Ga.?

One of a trio of LGBTQ workplace discrimination cases that the Supreme Court heard in October.

Doraville’s Gerald Bostock is the former coordinator of Clayton County’s Court Appointed Special Advocate program. He alleges he was fired because he is gay. The county said Bostock’s sexual orientation was not a factor and that program funding was misspent under his watch.

What was argued?

Whether Title VII of the Civil Rights Act of 1964, when it banned sex discrimination in the workplace, by extension prohibited bias against LGBTQ people due to their sexual orientation or gender identity.

Attorneys for Bostock and other plaintiffs argued that bias against gay people is akin to gender stereotyping, which the Supreme Court ruled was illegal in 1989. Employers biased against gay employees, they said, are relying on stereotypes that all men should be interested in women and vice versa.

The Trump administration, which argued for the defense, said sex and sexual orientation are two separate things, the latter of which Congress almost certainly did not have in mind when it wrote the Civil Rights Act in 1964. The courts don’t have the authority to legislate new laws, Trump’s solicitor general said — only Congress does.

What did the Supreme Court decide?

On June 15, the justices in a 6-3 ruling sided with Bostock and the other plaintiffs.

“The answer is clear. 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,” Justice Neil Gorsuch, a Trump appointee, wrote for the majority. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”