Bisexuals not covered by federal employment protections, Mitchell and Hotze argue

A hardline Christian activist and an evangelical church in North Texas are arguing that federal employment protections for LGBT workers don’t apply to bisexuals. In a brief filed with the federal appeals court last week, their lawyers argued the U.S. Supreme Court’s 2020 decision barring employment discrimination based on sexual orientation or gender identity does not apply to bisexuals — as long as bi men are being discriminated against “on equal terms” as bi women. “An employer who discriminates on account of an employee or job applicant’s bisexual orientation (or conduct) cannot engage in ‘sex’ discrimination as defined,” the lawyers wrote, “because that employer would have taken the exact same action against an identically situated individual of the opposite biological sex.” They filed the brief the day it was due, Sept. 21, midway through Bisexuality Awareness Week.

Bisexuals made up the majority, nearly 57%, of Americans who identified as LGBT in a recent Gallup poll. The percentage of Americans identifying as bisexual, or attracted to more than one gender, is highest among those born between the mid-to-late 1990s and the early 2010s; nearly one in six members of Generation Z who were surveyed identified as bisexual. Former Texas solicitor general Jonathan Mitchell and Gene Hamilton, with the Trump-affiliated American First Legal, are representing the plaintiffs. Their clients are Braidwood Management, a business owned by anti-LGBT activist Steven Hotze, and Bear Creek Bible Church in Keller. If they win, employers with a sincere religious belief would be carved out of the 2020 ruling in Bostock vs. Clayton County that barred sex-based discrimination in the workplace. Mitchell sued the U.S. Equal Employment Opportunity Commission in 2018, arguing that employers with religious objections should be able to hire and fire employees based on their gender identity or sexual orientation. Last year, U.S. District Judge Reed O’Connor ruled largely in his favor. But the judge sided with the federal government on two issues — so-called bisexual conduct and certain transgender health care procedures.