Supreme Court's ruling on LGBTQ discrimination won't end efforts for state law in Arizona

The U.S. Supreme Court’s decision Monday protecting workers from discrimination based on their sexual orientation or transgender status was a milestone for the rights of LGBTQ Americans, but state lawmakers argue the ruling still leaves Arizonans open to unfair treatment in many other areas of daily life.

The landmark ruling does not prohibit housing discrimination, for example, in states like Arizona where there are no laws expressly barring such discrimination.

And while at least five Arizona cities have adopted anti-discrimination policies over the past few decades, most of the state's municipalities have not, and an executive order from former Gov. Janet Napolitano in 2003 prohibited discrimination in state government based on sexual orientation but not gender identity.

The Governor's Office said it was reviewing the decision, but spokesman Patrick Ptak said Gov. Doug Ducey "remains opposed to discrimination in all its forms."

While counting Monday’s decision as a victory, legislators and advocates for the rights of LGBTQ Arizonans said the court did not end the campaign for a comprehensive anti-discrimination law at the state level.

“Both Congress and each state needs to finish the job the Supreme Court has started,” said Michael Soto, executive director of Equality Arizona, which advocates for LGBTQ rights.

Proposals blocked at Capitol

Democrats along with one Republican — state Sen. Kate Brophy McGee of Phoenix — sponsored bills this year that would make it illegal to discriminate in many circumstances against a person because of sexual orientation or gender identity. 

An employer, for example, could not turn down a job applicant, or a landlord could not turn away a prospective renter because the person is gay or transgender under their proposals.

But bipartisan backing and support from blue-chip companies have not been enough to overcome staunch opposition from conservatives to similar bills filed in recent years in the Republican-controlled Legislature.

The bills did not get a single hearing this year.

Proponents have said they see themselves making some progress in Arizona politics, though. 

In 2019, for example, the Legislature repealed Arizona’s “no promo homo” law, which restricted schools from discussing HIV or AIDS. 

This year, a controversial sex education bill didn’t even get a hearing after national media coverage and an outcry from LGBTQ rights groups.

Supporters of LGBTQ rights suffered a setback in 2019, however, when the Arizona Supreme Court ruled in favor of a small business that sued the city of Phoenix over the municipal government’s nondiscrimination ordinance.

The owners of Brush and Nib argued they should not have to make wedding invitations for gay couples (they had not been asked but sued before the issue could arise).

The Supreme Court ruling overturned multiple lower-court decisions that protected the portion of Phoenix's nondiscrimination ordinance that applies to the LGBTQ community. An attorney for Phoenix insisted the decision was narrow and did not strike down the city's law. But LGBTQ rights groups said they feared the decision left room for broader lawsuits.

Meanwhile, the U.S. Supreme Court’s decision on Monday does not address similar issues of public accommodation — one of the three main elements of the anti-discrimination laws LGBTQ rights advocates have proposed at the Legislature.

“Obviously, this is not a be all, end all decision,” said Rep. Daniel Hernandez, a Democrat from Tucson and chairman of the Legislature’s LGBTQ Caucus. “You can still get denied housing, you can still get denied public accommodations other people are entitled to.”

What the court decided

Instead, the U.S. Supreme Court’s decision in Bostock v. Clayton County, Georgia stemmed from employment disputes — three different cases of people who said they were fired because they are gay or transgender.

Gerald Bostock, for example, worked as a child welfare services coordinator and said he was fired after joining a gay softball league.

Title VII of the Civil Rights Act prohibits discrimination “because of sex.”

In its 6-3 decision that brought together some conservative jurists with liberal judges, the U.S. Supreme Court agreed that this also prohibits discrimination based on sexual orientation and transgender status.

Writing for the majority, Justice Neil Gorsuch acknowledged that the authors of the Civil Rights Act probably did not imagine that the provision about sex discrimination would come to apply to LGBTQ people.

“But the limits of the drafters’ imagination supply no reason to ignore the law’s demands,” he wrote. “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”

Conservatives argued the court’s decision recasts the law’s meaning in a way its authors did not intend and effectively acted as lawmakers.

"There is only one word for what the Court has done today: legislation," Justice Samuel Alito wrote in a dissent.

The consequence, critics contend, suddenly changes the rules for many employers in ways they may not have expected.

“Today’s ruling redefines the term, ‘sex’ and could have a chilling effect on conscience rights, and protections and equal opportunities for girls and women,” said Cathi Herrod, president of the Center for Arizona Policy, a conservative advocacy group.

To "finish the job," as Soto described it and address at the legislative rather than judicial level, lawmakers will have to settle a culture war that has been raging for years at the narrowly divided Arizona Legislature; the fate of which may rest on the election in November, as well as the session that comes after it.

Contact Andrew Oxford at andrew.oxford@arizonarepublic.com or on Twitter at @andrewboxford.