LGBTQ+ VICTORY: SUPREME COURT RULES AGAINST JOB DISCRIMINATION BASED ON SEXUAL ORIENTATION & GENDER IDENTITY

A man waves the pride flag in front of the Supreme Court while they deliberate the legalization of same-sex marriage nationwide in April 2015. Courtesy of Wikimedia Commons.

For as far as we as a nation have come concerning LGBTQ+ rights, it is worth remembering that there is still much work to be done. For years members of the community fought for the right to even publicly exist amongst tormentors and violence, issues of transgender people’s rights to use the bathroom they feel most comfortable in still rage, and only 5 years ago in June 2015 was same-sex marriage legalized on the national level by the Supreme Court. However, on Monday the Supreme Court made another landmark decision for the LGBTQ+ community, ruling that federal law prohibits any form of job discrimination on the basis of one’s sexual orientation or gender identity, particularly transgender status. That both decisions were made during the Pride month of June is both serendipitous and symbolic.

The ruling concerned Title VII of the Civil Rights Act of 1964, which ruled that no employee can be discriminated against on the basis of race, religion, national origin and sex. That last one, “sex,” was the chief concern of the Supreme Court’s Monday ruling, the question being whether the term “sex” applies to one’s transgender status or sexual orientation in the context of job discrimination. Initially, both lawyers and the Trump administration argued that Title VII did not encompass job discrimination based on sexual orientation or transgenderism, and if Congress desired to include them, new laws would need to pass. Frankly, these talks of semantics may seem, on the surface, needlessly drawn out, and if employment equality based on LGBTQ+ status is the end goal then surely the method by which it is accomplished isn’t important, right?. But when new laws created by Congress can take months and years to be passed into law, expedience takes precedence for basic human rights (especially in the current extremely volatile job market thanks to COVID-19).

John G. Roberts Jr. and Judge Neil M. Gorsuch, both who voted in favor of sexual orientation and transgenderism being a subset of “sex.” Courtesy of Wikimedia Commons.

The Supreme Court’s vote passed 6-3 on Monday, with the majority opinion written, surprisingly, by Trump Supreme Court nominee Justice Neil M. Gorsuch along with liberal Supreme Court members Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Elaborating on the decision, Gorsuch said: “An employer who fired an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” In response to the conservative Supreme Court members who argued that such LGBTQ+ issues were not present in the minds of those who initially passed Title VII, Gorsuch stated that “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result, but the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” Justice Ginsburg also brought up that sexual harassment was also not on those lawmaker’s minds, but continues to be relevant in the Supreme Court today. This result is even more shocking considering the Supreme Court’s often conversation majority since the retirement of Justice Anthony Kennedy in 2018.

Three separate Supreme Court cases were taken into account when voting. The first and second, which were companion cases, concerned openly gay men Gerald Bostock and Donald Zarda, respectively. Bostock was fired from his job after joining a gay softball league, while Zarda was fired from his job as a skydiving instructor after a complaint from a female client, who was supposed to be strapped to him during a dive. When she conceded her concerns about being strapped to Zarda, his response assuring her that he was “100% gay” led to his termination. Unfortunately, Zarda died in a 2014 skydiving accident before finishing out the case. Bostock’s lawyer, Pam Karlan, argued that “When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII…the employer has discriminated against the man because it treats that man worse than women who want to do the same thing. And that discrimination is because of sex.”

Then President Lyndon B. Johnson signs the Civil Rights Act of 1964, with White House guest Martin Luther King Jr. Courtesy of Wikimedia Commons.

The second case was that of transgender woman Aimee Stephens, who two weeks after telling her boss she was transgender, was fired from her funeral home job, allegedly for breaking the dress code. The ACLU argued for Stephens, saying that her transgender status very clearly related to Title VII, as if she was “assigned a female rather than a male sex at birth,” then her decision to wear women’s clothing would not have been met with disdain from management. In other words, one’s “sex” is inherently tied to their sexual orientation or transgender status in the context of Title VII. Stephens unfortunately died of kidney complications at age 59 before she could finish the case, but her estate continued the case on her behalf.

This is a huge victory for LGBTQ+ members and activists all over the country. In a time when the fight against systemic racism has entered the mainstream in the biggest way in decades, it is so important to acknowledge the black trans people who paved the way for the modern LGBTQ+ community in the United States. Marsha P. Johnson and Sylvia Rivera, LGBTQ+ rights pioneers who self-identified as drag queens, were two of the major players in the famous Stonewall Uprising that brought about the gay liberation movement. This is just another step in their long quest for LGBTQ+ equality, and what better month than Pride for it to occur.

Image courtesy of Pexels
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