During my 57 years on this planet, I have read and heard about many of the major U.S. Supreme Court (SCOTUS) cases that have been either huge wins or setbacks for our TBLGQ community.
The Bowers v. Hardwick case was the one in 1986 that upheld U.S. sodomy laws in a 5–4 decision. It held that consenting adults don’t have a constitutional right to homosexual acts in private.
That was followed a decade later by the 6–3 decision striking down the odious Colorado Amendment 2 that sought to deny gays and lesbians protection against discrimination in the 1996 Romer v. Evans case.
Just four years later, in 2000, the community was handed another loss when the SCOTUS ruled in a 5–4 Boy Scouts of America v. Dale decision that the Boy Scouts could ban gays from their organization.
The 2003 Lawrence v. Texas case grew out of the arrest of a local gay couple. The 5–4 decision in that case overturned the Bowers v. Hardwick decision and struck down all of the nation’s remaining sodomy laws—even though the Texas Legislature still refuses to remove the invalidated anti-sodomy language from the Texas Penal Code.
Ten years later, in the 2013 United States v. Windsor case, by the same 5–4 margin, Justice Anthony Kennedy joined the liberals on the Supreme Court to strike down the Defense of Marriage Act (DOMA). This was the first marriage-equality case heard by the SCOTUS, and the majority held that DOMA violated the rights of gays and lesbians.
That same year, the Hollingsworth v. Perry case was decided by a 5–4 margin. It stated that marriage-equality opponents didn’t have standing to appeal the lower-court ruling that overturned California’s Prop 8. That ruling allowed California to resume same-sex marriages in the state.
Then there’s the 2015 Obergefell v. Hodges case that legalized marriage equality across the U.S. in a 5–4 decision. As a result of this landmark ruling, states must provide marriage licenses to same-sex couples and also recognize same-sex marriages that were legally licensed and performed in other states.
So why am I recapping all these TBLGQ SCOTUS cases? Because with the flipping of the calendar page to October, we see that the first Monday of this month marks the beginning of the 2019–2020 Supreme Court term. After the SCOTUS justices take their ceremonial photo on Monday, they go to work on October 8.
On the agenda that day will be three landmark TBLGQ workplace-discrimination cases that will have a profound impact on all TBLGQ+ persons in the United States. Those three cases will decide whether TBLGQ people are covered under Title VII of the Civil Rights Act of 1964.
Two of the three cases, Zarda v. Altitude Express and Bostock v. Clayton County, Georgia have been consolidated, and will determine whether antigay discrimination is a form of illegal sex discrimination. The ACLU is arguing the Zarda SCOTUS cases, while an Atlanta-area legal firm is arguing the Bostock SCOTUS case.
In the Zarda case, the late Donald Zarda filed suit against Altitude Express after the skydiving instructor was terminated by them in 2010 for being gay. Zarda died a few years later as the result of a BASE jumping
accident in Switzerland, and his family elected to continue pursuing justice for him in this case.
Gerald Bostock filed suit against Clayton County after he was terminated from his management job by Clayton County in 2013 after he revealed to coworkers that he’d joined a gay softball league.
The ACLU is also arguing the third trans-specific case, Harris Funeral Homes v. EEOC, which will determine whether anti-trans discrimination is a form of sex discrimination. Aimee Stephens was fired by a Detroit-area funeral home she worked at in 2014 after informing her employer she was beginning her transition.
The Sixth Circuit already has favorable case law from multiple trans-discrimination cases that buttress the argument that anti-trans discrimination is a form of sex discrimination. The funeral home and the Trump administration are arguing otherwise.
Gee, why am I not surprised about that revolting development?
While all these cases are being argued on the basis of whether Title VII applies to anti-TBLGQ discrimination, these landmark cases will affect all federal laws banning discrimination on the basis of sex, including Title X of the Education Amendments of 1972 and the Fair Housing Act.
If we get an adverse ruling in these cases, it won’t just negatively affect the TBLGQ+ community. If you are a cis hetero person who is perceived to be a member of our community, you will also be at risk for job termination, so you may wish to stand with us to see that justice is done.
I’m also concerned that with conservative justices Gorsuch and Kavanaugh on the court, these cases won’t be decided in our favor. Then again, they could shock me and it could go our way with a 5–4 decision.
We’ll find out for certain at the end of the SCOTUS 2019–2020 term in June, when we will either be celebrating a landmark win or a legal setback that will greatly prolong our civil-rights battle. No matter which way these cases go, they will undoubtedly be a hot issue during the 2020 elections.
I’m hoping and praying for another landmark win.
This article appears in the October 2019 edition of OutSmart magazine.