ANALYSIS: LGBT Discrimination Claims Have Risen Since Bostock

Discrimination claims based on sexual orientation and gender identity have climbed since a landmark US Supreme Court decision that advanced LGBT rights in the workplace.

Three years ago, the high court ruled that Title VII’s definition of “sex” included sexual orientation and gender identity, thus prohibiting employment discrimination based on those characteristics.

Since the Bostock v. Clayton County decision, Title VII claims alleging sexual orientation or gender identity discrimination have generally increased, with the exception of two circuit courts, according to a recent Bloomberg Law analysis.

Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of race, color, religion, sex, or national origin.

A federal docket keyword search of Title VII and LGBT-related terms in complaints filed between Jan. 1, 2018 and March 31, 2023, shows that new cases were at their lowest before Bostock in Q1 2019, when there were only 22 new filings.

On the flip side, new case filings peaked in the year after the high court’s ruling: Q2 and Q3 2021 had 68 new filings each, and Q4 2021 had 69 new filings. After a slight decline in the last two quarters of 2022, filings are up again, with 58 in Q1 2023.

Circuit Splits

A deeper dive into the data shows that after Bostock, the number of Title VII claims based on sexual orientation or gender identity has risen in district courts in almost all of the federal circuits.

There were 542 claims filed in the 30 months after the decision (June 15, 2020 to Dec. 31, 2022)—a noticeable leap from the 347 claims filed in the 30 months before Bostock (Jan. 1, 2018 to June 14, 2020). Only the Fourth and Seventh Circuits saw fewer claims in the post-Bostock period.

Some discrepancies may be related to the availability of local antidiscrimination laws in the states falling within the circuits.

For instance, the relatively high number of filings in the Eleventh Circuit may be due to the fact that the states in that circuit—Alabama, Georgia, and Florida—don’t have state-level employment protections for LGBT people. Accordingly, plaintiffs in those jurisdictions are forced to file under federal law.

In contrast, filings in the populous Ninth Circuit are relatively low—perhaps because most states in that circuit have laws protecting sexual orientation and gender identity. Local laws allow aggrieved employees to file state claims in local courts that may be perceived as being more plaintiff-friendly.

Despite evidence of growing public acceptance of marriage equality and other LGBT issues, more states are advancing proposals to restrict the rights of LGBT people. New laws are targeting the LGBT community, and include provisions restricting gender-affirming care, drag performances, and access to public restrooms.

Nevertheless, sexual orientation and gender identity remain protected classes under federal law, and plaintiffs are increasingly exercising their legal rights in court.

Bloomberg Law subscribers can find related content on our new In Focus: Gender Identity Discrimination page.

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