June 16, 2020

NM LGBTQ community have mixed reactions over actual impact of anti-discrimination ruling

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Laura Paskus

The U.S. Supreme Court.

The U.S. Supreme Court’s ruling on Monday protecting LGBTQ from workplace discrimination “further enshrines” protections New Mexico already put in place, said Adrian N. Carver.

Carver, executive director of the nonprofit Equality New Mexico, said the state passed laws in 2003 and 2019 that protects most workers who identify as LGBTQ from workplace discrimination.

But, he said, that doesn’t always mean people are genuinely protected.

“Legal equality is very different from lived equality,” Carver said.

Susan Powers, a transgender woman living in Albuquerque, agreed and said she lost two jobs because she came out. That loss ended her 23-year career working in emergency services.

She now is self-employed to avoid workplace discrimination. She said she doesn’t think the federal ruling will be that effective because employers will not admit they fired an employee on the basis of sexual orientation or gender identity.

“Proving that (discrimination) always will be difficult,” Powers said.

The 6-3 court decision which makes it unlawful for employers to discriminate on the basis of sexual orientation or identity, is considered a landmark decision. President Donald Trump encouraged the court to rule against the gay and transgender workers who brought the suit.

Adrian Lawyer, co-founder and co-director of Albuquerque-based Transgender Resource Center, said the transgender community around the country was “bracing for it to go badly.”

Justice Neil Gorsuch, appointed by Trump, wrote the majority opinion. Justices Brett Kavanaugh, Clarence Thomas and Samuel Alito dissented.

The ruling involved three separate cases, one in Georgia, one in Michigan and one in New York state, that asked the court to decide if the word “sex” in Title VII of the 1964 Civil Rights Act extends to protect against gender identity and sexual orientation discrimination.

Gorsuch wrote that it does.

“An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” he said in the opinion.

The ruling came just days after the U.S. Department of Health and Human Services rolled back a regulation that previously protected transgender patients against gender identity discrimination under the Affordable Care Act.

Lawyer said the regulation, enacted under the Obama Administration, prevented insurance companies and health care professionals from denying transgender-related care.

“Every advance we’ve made in ten years has systematically been rolled back,” Lawyer said of actions by the Trump Administration.

Lawyer said that even though New Mexico is one of 17 states that already had anti-discrimination protections in place for LGBTQ workers, the fact that the state is an “at will” state makes it that much harder for transgender or queer people to prove discrimination.

An “at will” state means an employer can fire an employee without giving cause.

“Employer discrimination is notoriously hard to prove,” Lawyer said. “The burden is on the plaintiff.”