Yost Adds Ohio to States Arguing That Civil Rights Laws Don't Protect LGBTQ Workers

Aug 26, 2019

Ohio Attorney General Dave Yost has joined a U.S. Supreme Court case siding with states that think federal civil rights laws do not protect LGBTQ employees from workplace discrimination.

That news came as a shock to some activists, but was well received by others. 

Sen. Nickie Antonio (D-Lakewood) is disappointed – to say the least.

“Our attorney general has entered into weighing in and support of a push to discriminate against a group of people. That is appalling,” Antonio said.

For years, Antonio has tried to pass what she’s called the Ohio Fairness Act – a bill to add sexual orientation and gender identity as protected classes under the state’s anti-discrimination law related to employment, housing, and public accommodations. She notes one of Mike DeWine’s first actions as governor was to sign an executive order protecting LGBTQ state workers.

So Yost’s decision to file a friend of the court brief in this lawsuit has left her puzzled.

“Why in the world would we put effort into taking away rights from people than working to open the circle and include everyone?” Antonio said.

But conservatives are pleased with the decision to join the lawsuit. Aaron Baer with Citizens for Community Values said the federal civil rights law at issue – Title VII of the Civil Rights Act of 1964 – includes five protected classes that are clearly defined: sex, race, color, religion and national origin.

“Attorney General Dave Yost is standing up for what the law is, not what some political activists want it to be. When Title VII was passed, it’s very clear that sex means male or female. And what you have today is you have a handful of activists trying to redefine words that Congress passed to achieve their political victories,” Baer said.

In this case, Baer also said it appears activists don’t believe their own argument, that sexual orientation is protected by that law, “because if they did, they wouldn’t be pushing things like HR5, what they call the Equality Act, or Senate Bill 11 in Ohio that they call the Fairness Act, where they’re trying to add gender identity and gender expression to the law. They don’t really even believe their legal arguments.”

“And so what you have is Dave Yost standing up for common sense and for what the law actually is instead of what a political agenda wants it to be,” Baer said.

Some conservatives extend their concern to so-called “bathroom bills”, which allow a person to use the restroom that matches their gender identity. Though that legislation has been proposed in Ohio, it’s never been given serious consideration – and indeed, no state has a law like that on their books.

Yost wasn’t available for comment, but said in a written statement that the case “is about whether the judiciary gets to write new laws or if that should be left to elected legislators.” He adds, “If the law is to be amended, Congress, not the courts, should be the one doing it.”

With that in mind, the state’s leading LGBTQ rights group says Yost should be speaking up in the opposite way.

“It is a backwards look for the state of Ohio to have the attorney general coming out and saying, look, LGBTQ people should not be protected from discrimination in the workplace,” said Marshall Troxell, the policy coordinator for Equality Ohio. “Really, we would love for him to come out and say, LGBTQ people should be explicitly protected and urge his colleagues in the legislature to move the Ohio Fairness Act forward.”

The Ohio Fairness Act has had three hearings, the last one in May. Antonio says it’s the seventh time a bill like this has been introduced in the past 11 years. 29 states, including Ohio, have no laws with this anti-discrimination language.

Ohio is among 15 states – all Republican dominated – joining the Trump administration in arguing that federal civil rights laws don’t protect LGBTQ people from workplace discrimination. 21 mostly Democratic states and the District of Columbia have filed briefs opposing that. The case will be argued before the U.S. Supreme Court on October 8.