08/30/2014 03:40 pm ET Updated Feb 02, 2016

Gay Rights Progress Towards the ENDA the Line

This year's meeting of the National LGBT Bar Association, known as Lavender Law, provided an update on the state of gay and trans rights in America (and beyond). Not surprisingly, thanks to the recent Hobby Lobby decision of the Supreme Court, the plenary that brought out the heaviest hitters was the one entitled, "Religious Freedom or the License to Discriminate?" The news rumor that caught my attention, however, was one related to employment discrimination, Title VII and gay rights.

For the past 28 months, some of us have been promoting the news that trans and gender nonconforming persons throughout the United States are protected against employment discrimination in all 50 states, thanks to the EEOC ruling in Macy v. Holder. That ruling, which has been affirmed in legal actions several times since then, and which itself built on successes in the Smith, Schroer and Glenn cases, covered transgender persons in all 50 states, and left much of the gay community behind. For many reasons, the LGBT community avoided promoting the good news to the trans community. One of the reasons was the perceived difficulty lobbying Congress to pass an inclusive ENDA when a segment of the community already had protections. Another was the desire to show solidarity between the gay and trans communities, holding off until gay persons would be covered as well. A third was what has been called a "SCOTUS fetish" among some lawyers, the belief that unless the Supreme Court takes a case and rules in your favor, the law is somehow not real, leaving the Constitution a "virtual" document. There have been debates about "binding" and "not binding," deliberate obfuscation by some gay legal advocates leading to such misstatements that "the decision [Macy] applies only to federal employees" and a general disbelief that we could actually have been so lucky to obtain such a strong ruling in Macy.

Thanks to the clear and direct statement of the Department of Labor last month that trans persons are, indeed, covered under Title VII, the majority of LGBT attorneys seems to have accepted that reality, though anxiety remains with some advocates. In the face of all the denial over the past two years, progress had continued on another front, and rumor has it that a big breakthrough may be imminent.

While the groundwork was being laid, culminating in the Macy decision, to categorize discrimination on the basis of gender identity and expression as a form of sex discrimination, gay plaintiffs were winning cases as well. As early as 2011, progress was made in the Castello and Veretto decisions, and lately continued with Couch v. Dept. of Energy and EEOC v. Boh Brothers Construction. The Boh Brothers case is a critical one, as it turned into a victory in the Fifth Circuit Court of Appeals, with a consent judgment recently approved by the federal district court in New Orleans.

This case, decided in what most view as the most conservative federal circuit in the nation, revolved around the sexual harassment of a man perceived to be gay by his supervisor. A jury in federal district court in New Orleans ruled in the plaintiff's favor, but the judgment was overturned on appeal to a panel of Fifth Circuit judges. The EEOC petitioned for review by the full appeals court, which ruled en banc in a 10-6 vote that "[t]he Fifth Circuit majority said offensive remarks and conduct based on gender stereotypes can be evidence of unlawful sex discrimination under Title VII and the EEOC produced sufficient evidence Woods was harassed for not being "manly" enough to support the jury's verdict."

It is those "sex stereotypes" and manifestations of atypical gender expression which underpin the notion that discrimination on the basis of sexual orientation is a form of sex discrimination. The Fifth Circuit did not explicitly say that, but the legal community has been waiting for an EEOC case which will. That case may, finally, be near, and whether or not it rises to the level of the "gay Macy" case, or comes very close, it appears to be a major step in protecting the entire LGBT community under Title VII, the gold standard of civil rights employment law.

This will have the added benefit of containing a very limited religious exemption (the narrowest being the original 1964 Title VII ministerial exemption), and avoids the debate over the expanded exemptions in the ENDA passed last fall by the Senate. Should this EEOC case become public soon, or should another case in the pipeline, such as TerVeer v. Billington, rise to the fore and set the new standard, my feeling is that any further efforts to promote the current, or even the revised Polis version of ENDA this year, will fade away. Attention will then turn to an omnibus civil rights bill, including housing and public accommodations along with employment and credit protections.

One of the ironic twists in that scenario may be that the trans community, which has led the way forward with Macy in the civil rights arena, will once again be in the spotlight with respect to public accommodations protections, and we will hear that the bathroom issue is just too much to ask of Congress to resolve, leaving an omnibus bill exclusive of gender identity. I'd like to believe that won't occur, since we have stood with our gay friends even after the Macy decision ("No Gays Left Behind"), but politics has a habit of getting ugly.

One other point we should keep in mind is we're not the only progressive community striving for our civil rights. Professor Doug NeJaime of the UC Irvine School of Law opined during the conference that the thread that links the religious liberty arguments against LGBT rights also involves abortion and contraception, and women's rights in general. That is because it is predicated on controlling sexual relations, ostensibly to encourage procreative sex, and abortion, contraception and same-sex relationships all share one commonality -- non-procreative sex. The battle against a medieval religious mindset is not only occurring in Syria and Iraq, but here at home. While we must show respect for religious liberty, one of our founding principles and the core of the First Amendment, we need to understand the motivations of our opponents if we are to make further progress.