The Supreme Court’s Union-Busting Decision in Janus Is a Blow to LGBTQ Workers

This post is part of Outward, Slate’s home for coverage of LGBTQ life, thought, and culture. Read more here.

The Supreme Court finally issued its ruling in Janus v. AFSCME on Wednesday, the last day of the term. Justice Samuel Alito’s 5–4 opinion for the court awards a big payoff to conservatives by reducing the power of public-sector unions to collect agency fees from their members, essentially stripping them of the full power of collective bargaining and threatening their ability to effectively advocate for the rights of all workers. Perhaps equally significantly, and less noticed in most mainstream reporting, is the impact this decision will have on LGBTQ Americans.

Janus isn’t the first challenge to public sector unions’ ability to collect agency fees, money that subsidizes their negotiations on behalf of employees. On March 29, 2016, the Supreme Court deadlocked on the constitutionality of compulsory agency fees in Friedrichs v. California Teachers Association, allowing public unions to continue collecting this money from non-union members. Its stalemate was a victory for LGBTQ Americans. Though this might seem far removed from the kinds of issues that tend to mobilize the LGBTQ community, it bears noting two points that make this an issue that concerns sexual minorities: First, unions have been staunch allies to the LGBTQ community for decades; and second, the plaintiffs were motivated, in part, by their anti-gay politics.

Two of the lead plaintiffs on the case, Harlan Elrich and Rebecca Friedrichs, each pointed to LGBTQ issues as touchstones for their own feelings about their union. In an interview with the Washington Post last year, Elrich articulated his discomfort with his union’s position on same-sex marriage. “Recently in California they had the vote on same-sex marriages,” he said. “I am against same-sex marriages, and from my understanding the union put a lot of money into supporting them.” Friedrichs, for her part, was mobilized when she found out about unions opposing California’s anti-gay Proposition 8 in 2008: “Wait a minute,” she recalled thinking, “I don’t remember giving my permission.”

It was not only individuals who made the connection between unions and same-sex marriage. The Christian Educators Association’s executive director, Finn Laursen, stated his interest in defeating public unions because of their liberal positions “on homosexuality and abortion, and right down the list.” It is unsurprising that of the nine plaintiffs in Friedrichs, six are members of that association. Even as the suit was framed as a free speech issue, strong indicators of a back-seat culture war were visible.

Now that Gorsuch holds a seat stolen by Republicans, the Supreme Court was able to give the Friedrichs plaintiffs what they wanted. Janus was not as explicitly homophobic as they were. But make no mistake: The reasoning behind eliminating public unions is to undermine the progressive work of unions, to allow for bigotry to fester, and to prevent organized labor from supporting politicians who fight for the rights of LGBTQ workers to keep their jobs, benefits, and workplaces free of discrimination. A recent study found that half of LGBTQ employees in America are closeted at work. Expect to see that figure rise after Janus.

One reason the plaintiffs in these cases were concerned about these issues—and why organizations such as the Family Research Council supported the plaintiffs—was because unions historically have been some of the most vigorous defenders of LGBTQ Americans. In 1970, for example, just one year after the Stonewall riots, the American Federation of Teachers’ Executive Council resolved to “protest any personnel actions against any teacher solely because he or she practices homosexuality in public.” They re-asserted this position at their national convention in 1973, this time vowing to work towards repeal of “state laws and school district regulations which attempt to punish acts committed in the course of their private lives.”

Labor unions were also at the vanguard of AIDS activism in the 1980s. San Francisco’s SEIU Local 250, representing hospital workers, issued a brochure on “AIDS and the Health Care Worker” in 1984 that set a new national tone. The brochure was also made available in Spanish and distributed across the United States. Meanwhile, groups such as Pride at Work, a constituency group of the AFL-CIO, have been fighting vigilantly against anti-trans discrimination since the 1980s. In a statement issued in March 2015, Executive Director Jerame Davis announced that “attempts to ban transgender and gender non-conforming individuals from using the restroom that best matches their gender identity are appalling on every level.”*

While organizations such the Human Rights Campaign, dedicated as they are to their own narrative of “equality,” support candidates such as former Republican Illinois Sen. Mark Kirk—who vowed to vote against a modest increase to the national minimum wage—public-sector unions consistently support candidates who see labor and sexuality as inextricable. Though the HRC signed onto an amicus brief supporting the AFSCME in Janus, our fight demands consistent alliances between queer people and labor even when they are not being argued before the SCOTUS. Labor unions have been as unwilling to sell out the working class in an effort to pander to LGBTQ people, and they have been steadfast in their support for issues of concern to a broad range of their rank-and-file.

LGBTQ rights are workers’ rights. As queer labor historian Miriam Franks writes in her masterful 2015 book, Out in the Union: A Labor History of Queer America, “sophisticated LGBTQ labor activists have long understood that the labor movement and the movement for LGBTQ rights need each other as essential allies.” Though television sitcoms such as Modern Family would like to paint gay people as respectable through upward mobility and individual success, many members of our community are working-class people who depend on their unions for their survival. Similarly, many public workers are LGBTQ people whose vulnerability as both workers and sexual minorities is diminished through strong unions.

After the Stonewall riots of 1969, leaflets appeared throughout New York that read: “Do You Think Homosexuals Are Revolting? You Bet Your Sweet Ass We Are.” Today, in the midst of a climate that has transformed schoolteachers into public enemies and cast members of public unions as villains sinking the American economy, our collective power as workers was threatened by the courts. Still think LGBTQ public workers are revolting? Watch the headlines. You bet we are.