In what is perhaps the most stunning U.S. Supreme Court victory in history for LGBTQ people, the nation’s highest court has voted 6 to 3 that a federal law barring employment discrimination on the basis of “sex” also prohibits discrimination based on “sexual orientation” and “gender identity.”
The court’s decision in three cases testing the reach of Title VII of the federal Civil Rights Act came in one 33-page opinion consolidated under Bostock v. Clayton County. In words that will no doubt be highlighted for many years to come, Justice Neil Gorsuch (a Trump appointee who replaced the late conservative Justice Antonin Scalia) wrote:
“Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
“This is a huge victory not just for LGBTQ people, but for our country,” said Shannon Minter, legal director of the National Center for Lesbian Rights. “Today’s decision will be remembered as a watershed in the history of LGBTQ rights, even as our country continues to grapple with the brutal legacy of racism.”
“The Supreme Court agrees with the straightforward reading of the law that we’ve been advocating for years,” said Jenny Pizer, senior attorney for Lambda Legal. “The [Title VII] words on the page say ‘no workplace discrimination because of sex.’ There’s no way to understand those words [in a way] that excludes sexual orientation or gender identity. It means essential job protection for millions of LGBTQ people. That’s more important than ever now, as we grapple with the ongoing health pandemic and related economic challenges. For half a century, the law has promised workplace fairness. The Court today agrees—that promise protects LGBTQ people like everyone else.”
While this landmark decision only interprets the reach of Title VII of the federal Civil Rights Act of 1964, the ruling is widely expected to be applicable to many other federal laws prohibiting discrimination based on sex. Among those laws are Title IX of the Education Amendments Act, the Fair Housing Act, the Equal Pay Act, the Equal Credit Act, and Section 1557 of the Affordable Care Act that bars discrimination in healthcare and health insurance.
Title VII of the Civil Rights Act prohibits employers who have more than 15 employees from discriminating “because of sex.” The question was whether courts should interpret “sex” to encompass sexual orientation and transgender status. The court took up the issue in two separate oral arguments: one dealing with sexual orientation, and one dealing with transgender status.
The sexual orientation cases were Altitude Express v. Zarda, from New York and the Second Circuit U.S. Court of Appeals, and Bostock v. Clayton County, from Georgia and the Eleventh Circuit. Both involved gay men who were fired after acknowledging they were gay. The Second Circuit ruled that the employer’s firing of parachute-instructor Daniel Zarda did violate Title VII. The Eleventh Circuit, however, dismissed Gerald Bostock’s lawsuit, saying the court was bound to conform to the Eleventh Circuit’s earlier ruling that Title VII does not cover sexual orientation.
The transgender-status argument came through Harris Funeral Homes v. EEOC, from Michigan and the Sixth Circuit. It marks the first time the U.S. Supreme Court has taken up the issue of whether a transgender person is protected by Title VII. The Harris case involves a funeral director, Aimee Stephens, who worked at the funeral home for years identifying as a male, because that was the gender assigned to her on her birth certificate. But Stephens sincerely believed, since a young age, that her gender was female. When she finally summoned the courage to live true to her gender identity, she told her boss that she would begin transitioning to live life as a woman. Harris Funeral Homes then fired her, and Stephens filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC ruled that Harris Funeral Homes’ action violated Title VII, and the Sixth Circuit agreed.
Only 21 states have laws to prohibit discrimination in employment based on sexual orientation and transgender identity. Legislation to establish protections nationwide has been pending in various forms for more than four decades, but has yet to clear Congress.
Aimee Stephens, the funeral home employee who brought the transgender complaint to the EEOC, died of kidney failure on May 12 at her home in Detroit. She was 59. Donald Zarda, the plaintiff in the Altitude Express case, died in 2014 in a parachuting accident. He was 44.
Gerald Bostock, 56, said his job with Clayton County, where he advocated for child abuse and neglect victims, had been his “dream job.” The county fired him for “conduct unbecoming” after he joined a gay softball league. The firing also caused Bostock to lose his health insurance, just as he was recovering from prostate cancer. Reached recently, Bostock said he is currently working as a mental-health counselor for a Georgia hospital.
Title VII in Context
The month of June has often brought Supreme Court decisions of monumental importance to the LGBTQ community. For many years, with the pivotal vote of then Justice Anthony Kennedy, the court ruled that states could not bar same-sex couples from marrying (Obergefell v. Hodges, 2015), the federal government could not bar recognition of same-sex marriages (U.S. v. Windsor, 2013), and states could not bar same-sex couples from having intimate relations (Lawrence v. Texas, 2003).
Not all of the June LGBTQ decisions have been good ones, however. In 2017 (in Trinity Lutheran Church v. Comer), the majority ruled that church schools should receive the same grants as state schools, even if they discriminated against LGBTQ people. In 2018 (in Masterpiece Cakeshop v. Colorado), the court hinted it might be open to allowing small businesses to discriminate against LGBTQ customers by claiming a “religious exemption.”
“This is a huge victory for LGBTQ equality,” said James Esseks, director of the National ACLU’s LGBTQ & HIV Project. “The Supreme Court’s clarification that it’s unlawful to fire people because they’re LGBTQ is the result of decades of advocates fighting for our rights. The court has caught up to the majority of our country, which already knows that discriminating against LGBTQ people is both unfair and against the law.”
“Our work is not done,” Esseks cautioned in his written statement. “There are still alarming gaps in federal civil rights laws that leave people—particularly Black and Brown LGBTQ people—open to discrimination in businesses [that are] open to the public, and [in] taxpayer-funded programs. Congress must affirm today’s decision and update our laws to ensure comprehensive and explicit protections for LGBTQ people and all people who face discrimination.”
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