by Andrew Graham
A decision by the U.S. Supreme Court last week protecting LGBTQ people from discrimination in the workplace calls the state of Wyoming to account for resisting passing such statutes, gay rights advocates say.
On June 15, the U.S. Supreme Court in a 6-3 decision determined that existing law that forbids employment discrimination against people for their race, gender, sex and other characteristics protects LGBTQ workers. Neil Gorsuch, a Colorado-born justice with Wyoming roots, wrote the court’s majority opinion. In it, he said discrimination against someone because of their sexuality or gender identity is the same as discriminating against them because of their sex.
“It is impossible,” Gorsuch wrote, “to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The decision resolves one piece of a longstanding debate in Wyoming policy making and flashpoint in Wyoming culture following years of resistance from the state’s most powerful political party.
But relying on federal case law to settle the matter is insufficient, advocates say. Wyoming policy makers should build on the Supreme Court decision by writing statutes and policies to enshrine it and expand its protections to other areas of life where LGBTQ residents might be discriminated against, like housing and banking, advocates said.
“The federal law only goes so far,” Jason Marsden, a former Wyoming resident and the executive vice president of the Matthew Shepard Foundation in Denver, said. [Marsden is married to WyoFile operations manager Guy Padgett.]
“I don’t think Wyoming should feel it’s off the hook,” Marsden said.
A Wyoming House member and longtime advocate for the state’s LGBTQ residents said she anticipates those opposed to such protections will find ways to push back on the court decision.
“One assumes they will,” said Rep. Sara Burlingame (D-Cheyenne), who is the executive director of Wyoming Equality, an LGBTQ advocacy organization.
“The one thing I can say of our opposition is I’m so grateful, genuinely grateful, that they have allowed their ugliness to be so public,” Burlingame said. “People should pay attention to them, listen to them and believe them when they say ‘I desire the right to kick someone out of their home because of who they love,’” Burlingame said.
Lawmakers here have repeatedly declined to write protections for LGBTQ residents into state statute. Recent years have brought backlash to public institutions that tried to write sexual orientation and gender identity into anti-discrimination policies.
Opponents of such policies crowded into a board of trustees’ meeting at Eastern Wyoming College to oppose the community college’s inclusion of the language into policies there in May 2018. Later that year, in November, a meeting of the Wyoming Legislature’s leadership ran into the same opposition over anti-discrimination policies for LGBTQ lawmakers and legislative staff written the year before. The leaders of both institutions eliminated or changed the policies in response to the pressure.
A handful of conservative lawmakers spearhead the opposition along with the Wyoming Republican Party, which the vast majority of state elected officials are part of. One of the party’s platform planks defines marriage as “the union of one man and one woman.”
In January 2019, the party’s central committee passed a resolution opposing the inclusion of sexual orientation and gender identity “into any policy, ordinance, guideline, or statute at every level of government.” The party argued such policies and laws harmed the freedoms of others. Sexual orientation and gender identity were “undefined and undefinable terms,” the resolution said. Laws “cannot demand affirmation of personal ideas, choices, or behaviors without infringing upon the integrity and property rights of other persons,” it said.
Republican Party chairman Frank Eathorne did not respond to a voicemail or emailed questions. Sen. Cheri Steinmetz (R-Lingle), who has been a vocal supporter of such opposition along with Eathorne, also did not respond to multiple messages.
At both the Torrington community college and the legislative leadership meeting, Steinmetz argued the governing bodies were overstepping their authority in writing the policies. Because neither the state legislature nor U.S. Congress has ruled on such policies as law, other government bodies do not have the authority to adopt them, Steinmetz said.
But elsewhere in the state, municipal governments, community college boards and other governing entities have adopted anti-discrimination ordinances and policies that include sexual orientation and gender identity. Laramie and Jackson have adopted ordinances that come with penalties for those who discriminate. Casper, Gillette and Douglas have adopted resolutions against discrimination that do not carry penalties.
Even before last week’s ruling, the U.S. Equal Employment Opportunities Commission, which is responsible for enforcing federal laws on labor discrimination, interpreted federal law as forbidding discrimination based on sexual orientation and gender identity. It considered those characteristics protected by the prohibitions of sexual discrimination, according to its website.
‘Law of the land’
Though Wyoming workers who feel discriminated against because of their sexual orientation or gender identity are now able to look for redress from the federal courts, legal experts have said putting state statute on the books gives Wyoming’s LGBTQ population clearer protections. Not doing so places the onus on those residents to wage potentially long court fights in pursuit of justice.
Advocates like Marsden and Burlingame also argue that passing state laws carries economic benefits for a state struggling to move past its dependence on the energy industry. Companies with LGBTQ employees and leaders are more likely to do business in states with clear protections, they said.
“Things like legal protection, hate crimes law — I think companies take this into account very carefully,” Marsden said. The SCOTUS case highlights states that haven’t passed anti-discrimination protections for LGBTQ people, Marsden said. “It draws a sharp red line under the situation [in Wyoming],” he said.
Burlingame sees an opportunity for change, both with the Supreme Court decision and the pandemic’s devastating economic impacts on the state.
“My hope is that the people of Wyoming and my colleagues in the Legislature will take a look at the economic disaster that is in front of us and they will say ‘my lord we need to do something about it and this is all hands on deck,’” she said.
Further refusal to pass statutes — like a housing anti-discrimination bill she said she’s considering bringing this session — will hold back the state economy, she said: “If we are known as a state that does not protect its workers, that is not as warm and welcoming as we think we are… it’s one more nail in the coffin of Wyoming’s future.”
Asked about the Supreme Court decision during a press conference last week, Gov. Mark Gordon returned to arguments from his gubernatorial campaign, where he called statute change unnecessary because the state’s constitution guarantees many rights.
“Every citizen has the same opportunities and I resisted calls at the time for putting something in legislation,” Gordon said. “I didn’t think it was necessary.”
The Supreme Court decision only reinforces that view, he said. “At this point this is the law of the land,” he said. The court decision fits within “the framework” of the constitution, he said.
“Nobody should be discriminated against, nobody should be turned out of their house, this is Wyoming and we should fully recognize what our constitution says,” Gordon said.
Gordon would let the Legislature debate further statute changes like anti-discrimination laws for housing or banking, where he hoped there would be “robust and useful debate,” he said.
Burlingame suggested the governor could do more to lead. “There’s a role for the governor to play and there’s things he can do as well,” she said.
Neither U.S. Sen. John Barrasso or U.S. Rep. Liz Cheney responded to requests for comment.
WyoFile reporter Angus M. Thuermer, Jr. and managing editor Katie Klingsporn contributed reporting to this story.