On Monday, the U.S. Supreme Court ruled in a 6-3 decision that Title VII of the Civil Rights Act of 1964, the federal ban on sex discrimination in employment, protects LGBTQ workers from discrimination. The decision was based on a straightforward reading of the law: Discriminating against someone because they are LGBTQ is inherently sex discrimination. In his dissent, Justice Alito raised concerns about implications for employers with religious objections to hiring LGBTQ people, but the questions before the court in Monday’s monumental victory for LGBTQ workers did not involve whether the employers had a religious right to fire LGBTQ people. The court made clear that the scope of any religion-based defenses offered by Title VII, the Religious Freedom Restoration Act, and the constitutional protections for religious exercise would be addressed in future cases.

The court will have a chance to weigh in on these questions sooner than you might think, since the next big LGBTQ rights case is already on the docket for the fall.

In Fulton v. City of Philadelphia, Catholic Social Services (CSS) is challenging a Philadelphia requirement that agencies contracting with the city to provide government services must not discriminate. The ACLU represents the Support Center for Child Advocates and Philadelphia Family Pride, and we are supporting the city’s right to require all of its contracted foster care agencies to accept all qualified families and put the best interests of children first.

CSS receives public money to provide foster care services, a core government service, and argues that because of its religious beliefs, it has the right to discriminate against same-sex couples interested in becoming foster families. CSS says both that the city’s policy singles it out for unfair treatment — even though CSS requires all foster care agencies to follow the same policy — and that the Supreme Court should make it easier for anyone with any kind of religious objection to refuse to follow any law, including our laws against discrimination. The Third Circuit Court of Appeals ruled against CSS, and the Supreme Court granted review in February.

Fulton isn’t the only case where these arguments are coming up, it just happens to be the one the court has already agreed to hear. In another case, Minton v. Dignity Health, a Catholic hospital system is asking the Supreme Court to reverse a lower court ruling that rejected the health care chain’s claim that religious objections give it a right to deny gender-affirming healthcare to transgender people, in violation of California law. And in the long-pending case of Ingersoll and Freed v. Arlene’s Flowers, a business is once again asking the Supreme Court to rule that because the owner of the business has religious objections to marriages of same-sex couples, Washington State’s nondiscrimination law is unenforceable against the business with respect to its refusal to sell a same-sex couple flowers for their wedding.

If the question in the workplace discrimination cases brought by Aimee Stephens, Donald Zarda, and Gerald Bostock was what the law means, the question in these next cases is when and whether the law matters. Don’t get me wrong: It is a tremendous victory for the court to say that the plain words of the law protect LGBTQ people, just like everyone else. But that victory is fragile and will be eroded if the court furthers the agenda of the Trump administration by giving anyone who objects on religious grounds a free pass to violate the law.

Decades ago, the fight for our civil rights laws was led by Black people who demanded legal protections from rampant discrimination. Those bedrock civil rights laws have been under attack since their passage, including by demands for religious exceptions. The latest attacks on civil rights protections in the Fulton case and the others that follow it won’t just compromise the Bostock decision and LGBTQ rights. Members of minority faiths, women, and people of color are all at risk, and those who live at the intersection of multiple identities are even more vulnerable. These next cases are about whether laws intended to allow full participation in public life will continue to apply to us all, or if those who object can use their religious beliefs to humiliate, exclude, reject, and deny access and care. While we know well that legal protections don’t automatically translate into full equality, they are an important step, and a rule saying that anyone who wishes to discriminate can do so would gut those hard-fought laws.

Since it already has the Fulton case before it, we hope the court will take this opportunity to declare that there is no constitutional license to discriminate.

Rose Saxe, Deputy Director, LGBT & HIV Project, ACLU

Last week, IBM, Amazon, and Microsoft announced they would pause or end sales of their face recognition technology to police in the United States. The announcement caught many by surprise. For years, racial justice and civil rights advocates had been warning that this technology in law enforcement hands would be the end of privacy as we know it. It would supercharge police abuses, and it would be used to harm and target Black and Brown communities in particular.
 
But the companies ignored these warnings and refused to get out of this surveillance business. It wasn’t until there was a national reckoning over anti-Black police violence and systemic racism, and these companies getting caught in activists’ crosshairs for their role in perpetuating racism, that the tech giants conceded — even if only a little.
 
But why did IBM, Amazon, and Microsoft’s sale of face recognition to cops make them a target of the Black Lives Matter movement? How is face surveillance an anti-Black technology?
 
Face surveillance is the most dangerous of the many new technologies available to law enforcement. And while face surveillance is a danger to all people, no matter the color of their skin, the technology is a particularly serious threat to Black people in at least three fundamental ways.
 
First, the technology itself can be racially biased. Groundbreaking research conducted by Black scholars Joy Buolamwini, Deb Raji, and Timnit Gebru snapped our collective attention to the fact that yes, algorithms can be racist. Buolamwini and Gebru’s 2018 research concluded that some facial analysis algorithms misclassified Black women nearly 35 percent of the time, while nearly always getting it right for white men. A subsequent study by Buolamwini and Raji at the Massachusetts Institute of Technology confirmed these problems persisted with Amazon’s software.
 
Late last year, the federal government released its own damning report on bias issues in face recognition algorithms, finding that the systems generally work best on middle-aged white men’s faces, and not so well for people of color, women, children, or the elderly. The federal government study concluded the rates of error tended to be highest for Black women, just as Buolamwini, Gebru, and Raji found. These error-prone, racially biased algorithms can have devastating impacts for people of color. For example, many police departments use face recognition technology to identify suspects and make arrests. One false match can lead to a wrongful arrest, a lengthy detention, and even deadly police violence.
 
Second, police in many jurisdictions in the U.S. use mugshot databases to identify people with face recognition algorithms. But using mugshot databases for face recognition recycles racial bias from the past, supercharging that bias with 21st century surveillance technology.
 
Across the U.S., Black people face arrest for a variety of crimes at far higher rates than white people. Take cannabis arrests, for just one example. Cannabis use rates are about the same for white and Black people, but Black people are nearly four times more likely to be arrested for marijuana possession than white people. Each time someone is arrested, police take a mugshot and store that image in a database alongside the person’s name and other personal information. Since Black people are more likely to be arrested than white people for minor crimes like cannabis possession, their faces and personal data are more likely to be in mugshot databases. Therefore, the use of face recognition technology tied into mugshot databases exacerbates racism in a criminal legal system that already disproportionately polices and criminalizes Black people.
 
Third, even if the algorithms are equally accurate across race, and even if the government uses driver’s license databases instead of mugshot systems, government use of face surveillance technology will still be racist. That’s because the entire system is racist. As journalist Radley Balko has carefully documented, Black people face overwhelming disparities at every single stage of the criminal punishment system, from street-level surveillance and profiling all the way through to sentencing and conditions of confinement.
 
Surveillance of Black people in the U.S. has a pernicious and largely unaddressed history, beginning during the antebellum era. Take 18th century lantern laws, for example. As scholar Simone Browne observed: “Lantern laws were 18th century laws in New York City that demanded that Black, mixed-race and Indigenous enslaved people carry candle lanterns with them if they walked about the city after sunset, and not in the company of a white person. The law prescribed various punishments for those that didn’t carry this supervisory device.”
 
Today, police surveillance cameras disproportionately installed in Black and Brown neighborhoods keep a constant watch.
 
The white supremacist, anti-Black history of surveillance and tracking in the United States persists into the present. It merely manifests differently, justified by the government using different excuses. Today, those excuses generally fall into two categories: spying that targets political speech, too often conflated with “terrorism,” and spying that targets people suspected of drug or gang involvement.
 
In recent years, we learned of an FBI surveillance program targeting so-called “Black Identity Extremists,” which appears to be the bureau’s way of justifying domestic terrorism investigations of Black Lives Matter activists. Local police are involved in anti-Black political surveillance, too. In Boston, documents revealed the police department was using social media surveillance technology to track the use of the phrase “Black Lives Matter” online. In Memphis, police have spied on Black activists and journalists in violation of a 1978 consent decree. The Memphis Police Department’s surveillance included the use of undercover operations on social media targeting people engaged in First Amendment-protected activity. In New York, the police spent countless hours monitoring Black Lives Matter protesters, emails show. And in Chicago, activists suspect the police used a powerful cell phone spying device to track protesters speaking out against police harassment of Black people.
 
These are just a few examples of a trend that dates back to the surveillance of Black people during slavery, extending through the 20th century when the FBI’s J. Edgar Hoover instructed his agents to track the political activity of every single Black college student in the country. It continues to this day, with Attorney General Bill Barr reportedly giving the U.S. Drug Enforcement Administration — a scandal-ridden law enforcement agency tasked with spearheading the racist drug war — the authority to spy on people protesting the police killing of George Floyd.
 
The war on drugs and gangs is the other primary justification for surveillance programs that overwhelmingly target Black and Brown people in the U.S. From wiretaps to sneak-and-peak warrants, the most invasive forms of authorized government surveillance are typically deployed not to fight terrorism or investigate violent criminal conspiracies like murder or kidnapping, but rather to prosecute people for drug offenses. Racial disparities in the government’s war on drugs are well documented.
 
To avoid repeating the mistakes of our past, we must read our history and heed its warnings. If government agencies like police departments and the FBI are authorized to deploy invasive face surveillance technologies against our communities, these technologies will unquestionably be used to target Black and Brown people merely for existing. That’s why racial justice organizations like the Center for Media Justice are calling for a ban on the government’s use of this dystopian technology, and why ACLU advocates from California to Massachusetts are pushing for bans on the technology in cities nationwide.
 
We are at a pivotal moment in our nation’s history. We must listen to the voices of the protesters in the streets and act now to make systemic change. Banning face surveillance won’t stop systemic racism, but it will take one powerful tool away from institutions that are responsible for upholding it.

Kade Crockford, Director, ACLU of Massachusetts Technology for Liberty Project

The Supreme Court has ruled that LGBTQ people cannot be fired because of their sexual orientation or because they are transgender as a matter of federal law, affirming legal protections from job discrimination for millions of people. Here’s what today’s ruling means for the LGBTQ community, employers, and Congress’ next steps.

What did the Supreme Court’s decision say?

The Supreme Court ruled that the federal law prohibiting sex discrimination in the workplace (Title VII of the Civil Rights Act of 1964), protects people from discrimination for being LGBTQ. This decision follows decades of lower court cases and agency decisions holding that such discrimination is unlawful sex discrimination.

On April 22, the Supreme Court announced it would take up three cases that ask whether or not to roll back protections for LGBTQ people under the Civil Rights Act’s prohibitions on sex discrimination. The ACLU is counsel in two of the cases:R.G. & G.R. Harris Funeral Homes v. EEOC (Aimee Stephens)Altitude Express v. Zarda (Donald Zarda)

What does this decision mean for LGBTQ workers?

Title VII covers employees in workplaces with 15 or more employees. In every state across the country, it is now unlawful to fire someone just for being LGBTQ. Other types of anti-LGBTQ workplace discrimination, like harassment and failure to hire, are also illegal. In addition, state or local protections still apply. 

What about religiously-affiliated employers?

Title VII applies to religiously-affiliated employers. There are some exemptions, including for ministers or other individuals whose job involves teaching or leading the faith. But in general, it applies to most job positions.

How will this impact my rights in school, health care, or housing?

Federal law also prohibits sex discrimination in housing, healthcare, education and credit. The reasoning from this Supreme Court decision should mean that it is also unlawful to discriminate against LGBTQ people in those contexts. With respect to healthcare, these protections in law override the anti-trans regulations recently issued by the Trump administration under Section 1557 of the Affordable Care Act.

What more do we need to do?

While federal law now offers many protections nationwide, it does not protect LGBTQ people in some important areas of life, such as in businesses open to the public, and federally-funded programs. And the law has some serious gaps in protections for all of us. Especially in this moment, updating the law to address modern forms of discrimination is critical.

We can seize on the momentum of this victory and pass the Equality Act now. The House of Representatives passed this critical legislation in May 2019. Urge your Senators to move this bill forward and ensure that LGBTQ are fully protected by our civil rights laws.

We also must continue to rally in the streets and in all aspects of life to defend Black trans people from deadly violence. In doing this work, we must follow the leadership of Black trans people.

What if I still experience discrimination because I’m LGBTQ?

Contact a lawyer, or a legal organization like the ACLU.  We may be able to help.

Politicians are attacking the rights of transgender people’s access to public spaces, basic services, educational institutions, and ultimately compromising the ability of trans people to survive.

Rose Saxe, Deputy Director, LGBT & HIV Project, ACLU