The most important advance in 2020 came from the United States Supreme Court. In Bostock v. Clayton County, Georgia, the Court held that an employer unlawfully discriminates on the basis of sex when the employer fires an employee merely for being gay or transgender.

Discrimination because of sex is prohibited by Title VII of the Civil Rights Act of 1964. Before the Bostock decision, court decisions that considered whether a termination based on sexual identity was a termination “because of sex” were in conflict. In the Bostock case, the Court of Appeals for the Eleventh Circuit concluded that a Georgia employer did not violate Title VII by firing an employee because the employee, who presented as a male when the employer hired her, informed the employer that she intended to “live and work full-time as a woman.” Since Florida is part of the Eleventh Circuit, federal judges in Florida were bound by that decision until the Supreme Court reversed it.

The Supreme Court concluded that if an employer would not fire a woman for wearing clothes traditionally worn by woman but would fire a man for doing so, it is the employee’s gender that triggers the firing. By the same reasoning, if an employer would not fire a woman for being sexually attracted to men but would fire a man for that reason, the firing is “because of” the employee’s sex.

The Bostock decision opens the doors of federal and Florida courts to LGBTQ employees seeking a remedy for employment discrimination. The Bostock decision also makes clear that the Title VII prohibition against sexual harassment includes workplace harassment against LGBTQ employees because of their gender identity or sexual orientation.

Bostock was a groundbreaking decision. By giving effect to the plain language of Title VII, the Supreme Court gave workplace protections to millions of workers who could not depend on Congress to stand up for their rights.

For decades, Congress has failed to amend Title VII to make clear that it protects employees on the basis of sexual identity and sexual orientation. In February 2021, the U.S. House of Representatives passed the Equality Act. That bill would amend Title VII to expressly prohibit employment discrimination on the basis of sexual orientation or gender identity. It would also prohibit discrimination against the LGBTQ community in public accommodations, housing, education, credit decisions, federal funding, and jury service.

While Bostock provides protection under Title VII, passing the Equality Act would shield that protection against the possibility that a future Supreme Court majority might decide to change course. In addition, not all of the expanded protections covered by the Equality Act enjoy protection from sex discrimination under existing law.

While the Equality Act would provide the LGBTQ community with an important safeguard against discrimination in a variety of areas, a Senate bill that is identical to the House version was referred to the Judiciary Committee in February. No action has been taken on the bill since that time. The proposed law’s future is therefore uncertain.

While civil rights laws in 22 states expressly prohibit employment discrimination against LGBTQ employees, Florida’s Civil Rights Act does not. Efforts to amend Florida law to protect LGBTQ workers have consistently died in the Florida legislature.

A version of the “Competitive Workforce Act” has been introduced in the Florida legislature annually since 2009. The Act would protect LGBTQ employees from discrimination. The proposed law enjoys the support of many of Florida’s largest employers, but state legislators seem unwilling even to give the bill a hearing.

Since Florida courts have generally relied upon federal court decisions interpreting Title VII when they determine the meaning of the Florida Civil Rights Act, the Bostock decision might assure that LGBTQ workers are now protected against workplace discrimination under Florida as well as federal law. The distinction between federal and Florida remedies is important since caps of awards of damage imposed by federal law do not apply to lawsuits filed under Florida law. Until Florida courts decide the issue, however, it is unclear whether those additional remedies will be available in cases alleging discrimination in Florida on the basis of gender identity or sexual orientation.

Prior to Bostock, the Trump administration took the position that Title VII does not protect LGBTQ employees. The Bostock decision effectively nullifies regulatory efforts to exclude LGBTQ employees from the law’s protection.

On his first day in office, President Biden signed an executive order prohibiting discrimination by the federal government against federal employees because of sexual orientation or gender identity, while the Justice Department has concluded that the rationale of Bostock should apply to all federal laws that prohibit sex discrimination. While courts will need to weigh in on the Justice Department interpretation of other laws, members of the LGBTQ community may enjoy enhanced protections under a variety of laws that prohibit sex discrimination, including Title IX, the Affordable Care Act (ACA), the Fair Housing Act, and the 14th Amendment to the Constitution.

A 2014 report prepared by the Movement Advancement Project and the Center for American Progress estimated that 8 to 17 percent of lesbian, gay, and bisexual workers, and 13 to 47 percent of transgender workers, have been denied employment or fired on the basis of their sexual orientation or gender identity. Bostock provides a remedy for LGBTQ employees who are subject to unlawful workplace discrimination.

Prohibited discrimination extends beyond hiring and firing. The right to equal wages, sick and vacation leave, insurance, and retirement programs are all implicated by the Bostock decision. The reasoning of Bostock should also assure equal access to existing sex-segregated spaces for transgender workers.

The Equality Act and an equivalent Florida law are among the next legislative goals for advocates of LGBTQ rights. Until those laws are passed, however, LGBTQ workers can celebrate LGBTQ Pride Month with the understanding that their right to be free from employment discrimination and harassment has been recognized by the Supreme Court.

If you are an LGBTQ employee and believe you have been a victim of discrimination, you should see a lawyer as soon as possible to discuss your options.