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Monday, September 12, 2022

NJ LGBTQ Employment Discrimination Lawyer, Non-Binary, Non-Cisgender Rights and the Overturning of Roe

Some legal scholars are concerned that US Supreme Court in Dobbs v. Jackson Women’s Health Organization, decided June 24, 2022 contains rationales that will stimulate the Court’s self-encouragement for overturning other legal precedents affecting non-binary and non-cisgender rights, such as the Supreme Court precedents legalizing same-sex marriage and employee LGBTQ rights. The Court in Dobbs overturned the 50-year-old legal precedent of Roe v. Wade, 410 U. S. 113, which was decided a half a century ago on January 22, 1973.

The Dobbs Court in its opinion cited other cases in which it had overturned precedents, such as its 2015 ruling in Obergefell v. Hodges, 576 U.S. 644. In Obergefell, the US Supreme Court legalized same-sex marriage, which ruling other states subsequently were required to follow according to the Court’s new precedent. 

One of the Justices who voted to overturn Roe V. Wade, wrote that Obergefell may have been wrongly decided and should be revisited to see its precedent should also be overturned. He wrote:

In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” citing Ramos v. Louisiana, we have a duty to “correct the error” established in those precedents, citing Gamble v. United States...After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”

Bostock v. Clayton Cty Expanded Rights of Non-Binary and Non-Cisgender Employees

More recently in 2020, the US Supreme Court established a new precedent to be followed by all states, concerning gender and sexual orientation discrimination, that expanded rights of LGBTQ persons. In Bostock v. Clayton Cty., 140 S. Ct. 1731, the Court interpreted Title VII of the Civil Rights Act of 1964, to include discrimination as protected classes under the Federal statute. Prior to the U.S. Supreme Court ruling on June 15, 2020 in Bostock, Federal Courts in different jurisdictions did not always expand the interpretation of “sex” under the Federal law. This was due to that although Title VII prohibits discrimination in the workplace on the basis of sex, as well as race, color, religion, and national origin, Title VII does not specifically include gender identity or sexual orientation.

For Plaintiffs bringing a gender identity or sexual orientation discrimination claim under Federal law, whether they would prevail or not for a violation of “sex” discrimination, depending largely on what jurisdiction they were in, resulting in a split among the Federal Circuits. In some states, a plaintiff would win, in other states, plaintiffs would lose, even if the facts were identical.

Unlike some state employment discrimination statutes, Title VII does not expressly address sexual orientation or gender discrimination. Before this ruling, federal courts had disagreed whether Title VII’s prohibition of discrimination based on “sex” extended into those areas. The Supreme Court’s decision in Bostock conclusively answers that question, concluding gender identity and sexual orientation are both included in the definition of “sex”.           

Activists for the rights of LGBTQ persons are concerned that by the Supreme Court overturning Roe v. Wade, turning the clock back as to what the law was a half a century ago, the Court might now begin a pattern of overturning its other prior precedents. The rights of LGTBQ employees who bring claims of sexual orientation or gender identity discrimination under Title VII might possibly then have the legal protections under the expanded meaning of “sex” in Title VII removed, if sexual orientation or gender is no longer included per the precedent of Bostock v. Clayton Cty. Likewise, a ruling of overturning its own precedent in Obergefell v. Hodges, which legalized same-sex marriage, would turn back the clock to a time preceding that right of underlying core of privacy in intimate lives, that forms the basis of choosing a person to marry.

What You Can Do

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing LGBTQ persons and others in protected classes who were discriminated against at work and was successful in recovering multiple six figure settlement moneys for them. If you are thinking of resigning, or think you will be fired, or have been fired, it is important that you consult with an attorney who is experienced in employment law. I am successful in bringing employee lawsuits against governmental entities and private employers and recovering money for victims of discrimination.

If You Quit Your Job, You May Lose Right to Prevail in a Lawsuit

In many instances of discrimination, if you quit your job, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of quitting, or think you will be fired, you should contact this office immediately for a free consultation to discuss your options in the safest way for you.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in southern, central, western and northern NJ to meet with clients.            


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