As all of this was happening on the legislative side, the courts were also working through what the law already says about LGBTQ rights. In the past 30 years, the Supreme Court has ruled sex stereotyping illegal; declared sodomy bans unconstitutional; struck down state measures blocking civil-rights protections for gays, lesbians, and bisexuals; and, of course, legalized same-sex marriage in all 50 states. But even as the inevitability of legalized gay marriage was becoming clear in the early 2010s, “the narrative really began to take hold that you could be married on Sunday and fired on Monday and lose your housing on Tuesday,” Sarah McBride, the national press secretary at the Human Rights Campaign, a prominent LGBTQ-rights advocacy group, told me. “That really brought into starker contrast the absurdity of the lack of explicit protections.”
Read: How gay marriage became a constitutional right
This question has been particularly fraught for transgender people, such as the plaintiff who will go before the Supreme Court this fall. LGBTQ legal advocates have argued with mixed success that sex stereotyping, or discriminating against people based on their failure to live out societal norms for men and women, necessarily includes discrimination against transgender people. They argue that those who discriminate against transgender people because of their gender identity are already breaking the law—a claim the Supreme Court will soon consider in the Harris Funeral Homes case.
Because advocates are arguing that trans protections already exist in the law, but still need to be written into the law via the Equality Act, some critics have accused them of hypocrisy. Activists “are talking out of both sides of their mouths,” wrote Greg Baylor, the senior counsel for government affairs at the Alliance Defending Freedom, a conservative legal firm that advocates for religious liberty, in an email. “While arguing in court that Title VII already includes sexual orientation and gender identity, they are simultaneously urging Congress to add these categories.”
Mara Keisling, the head of the National Center for Transgender Equality, told me she is “confident the courts will eventually come down on our side.” Until that happens, however, “we do need these laws to explicitly name us, if for no other reason than it is better public education,” she added. “And public education is one of the most important parts about ending discrimination.”
Ironically, as LGBTQ rights have expanded, it has become harder for advocates to make their case to the public. Before the Supreme Court legalized gay marriage, “people could see very clearly the fact that same-sex couples couldn’t get married,” McBride said. “People have a more difficult time understanding the way civil rights work in our country, the absence of protections.” The movement has also developed powerful allies from Wall Street to Hollywood, and those alliances have been used against advocates. “The way in which the business community has embraced LGBT rights has played into the narrative that some on the right want to put out, which is that the LGBT community is not some vulnerable minority,” NeJaime said. “The irony about antidiscrimination laws is: Vulnerable groups don’t get protected until they’re actually … [able to] muster the political power to gain momentum.”