A RECENT ADVANCEMENT IN LGBTQ+ ANTI-DISCRIMINATION LAWS
Zoë Wallace
Head of Political and Global Impacts
Co-Editor-in-Chief
Secretary and Outreach Officer
The Civil Rights Act of 1964 was revolutionary; it banned segregation based on race, religion, or national origin in any public venue. Title VII of this same Act banned discrimination by employers or labor unions on the grounds of race, religion, national origin, or gender. The Civil Rights Act also ended federal funding towards any discriminatory measure, began an effort to desegregate schools, and ended discriminatory voting restrictions.
For decades, LGBTQ+ activists have been pushing for an amendment to this act that would explicitly ban discrimination based on sexual orientation and gender identity, but so farthey have not made solid progress in this pursuit. In 2007 and 2019, the House of Representatives passed a bill that would realize this effort, but it did not pass the Senate. In 2013, a similar bill was also passed in the Senate. Unfortunately, this legislation has never passed both the House and the Senate in the same Congress, so it has not been put into effect.
Finally, on Monday, June 15th, the Supreme Court took the unusual action of setting a new legal precedent in a 6-3 ruling that prohibited discrimination based on sexual orientation and gender identity. The new ruling was based on three cases that had been brought to the Supreme Court.
First, Aimee Stephens, a transgender woman, had been fired from her job because she decided in 2013 that she was “no longer going to represent himself [herself] as a man” (this is a statement from her former boss, Thomas Rost, who refused to use the correct pronouns for Stephens). The lower courts decided that Rost was not allowed to fire Stephens from her job, because it was “analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex.” Since Article VII prohibits discrimination on the basis of sex, the court ruled in Stephens’ favor. Unfortunately, Aimee Stephens has since passed away.
Gerald Bostock was a child welfare services coordinator in Georgia, and was fired despite good performance reviews. He has asserted that he was discriminated against because he is gay.
The third case involved Donald Zarda, a skydiving instructor, who revealed to a client that he was gay. Soon after this admission, Zarda was fired. Later, he passed away in an accident.
The C12 is a group of Christian CEOs and business owners. They have claimed that the Civil Rights Act of 1964 was not intended by Congress to provide protection for the LGBTQ+ community because “the concept of including such traits in an anti-discrimination law was unheard of in 1964.” Two hundred and six other companies (Amazon and Apple included) disagreed in a separate brief, asserting that “No one should be passed over for a job, paid less, fired, or subjected to harassment or any other form of discrimination based on their sexual orientation or gender identity.”
The current structure of the Supreme Court was not considered favorable to advancements in the rights of the LGBTQ+ community, but the ruling in favor of the plaintiffs nonetheless prevailed. Although they are theoretically non-partisan, there are currently four liberal/Democratic judges and five conservative/Republican judges that sit on the Supreme Court, two of which were appointed by President Donald Trump. For the judicial ruling to pass, one of the conservative judges needed to join the four liberal judges in their opinion that LGBTQ+ rights should be protected under Title VII.
Surprisingly, two conservative judges broke rank from the others to create a 6-3 victory for LGBT+ rights. Justices Neil Gorsuch (a Trump appointee) and John Roberts (a George Bush appointee) sided with the four liberal judges. Gorsuch wrote the majority opinion for the vote as follows:
“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires 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.
"Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit."
Neil Gorsuch is interpreting the Civil Rights Act exactly as it was written. Discrimination of employment based on sex is prohibited in Title VII, and in all three court cases being considered, the person would not have been fired if they were a member of the opposite sex. If Aimee Stephens had been born a woman, Thomas Rost would not have fired her for “representing” herself as a woman. If Gerald Bostock or Donald Zarda had been born as women, they would not have been fired for being attracted to men.
Although Gorsuch has been labeled as a traitor by some conservatives for his unexpected vote, his reasoning is clear. Others have argued that this Supreme Court decision was an abuse of the balance of powers within the government. For example, Justice Brett Kavanaugh has stated that this decision was closer to legislation than justice, and should have been left to the will of Congress. He believes that the motivation behind the use of the word “sex” in the Civil Rights Act of 1964 was to advance women’s rights, not the rights of LGBTQ+ people, and that the intent behind the words of the law should be taken into consideration.
Although President Donald Trump’s aides were quick to disagree with the Supreme Court decision, Trump has remained neutral, stating that he has “read the decision. Some people were surprised, but they've ruled and we live with their decision. That's what it's all about. We live with the decision of the Supreme Court. Very powerful, very powerful decision, actually."
Regardless of any dissent or negativity surrounding the Supreme Court ruling, this decision was undeniably a victory for the LGBTQ+ community, and is a landmark achievement in the pursuit of equal rights for all.
Sources:
“Supreme Court Finds Federal Law Bars LGBT Discrimination in Workplace.” POLITICO, www.politico.com/news/2020/06/15/supreme-court-lgbt-rights-decision-319693.
History.com Editors. “Civil Rights Act of 1964.” History.com, A&E Television Networks, 4 Jan. 2010, www.history.com/topics/black-history/civil-rights-act.
Vogue, Ariane de, and Devan Cole. “Supreme Court Says Federal Law Protects LGBTQ Workers from Discrimination.” CNN, Cable News Network, 15 June 2020, www.cnn.com/2020/06/15/politics/supreme-court-lgbtq-employment-case/index.html.
Vogue, Ariane de. “Historic Supreme Court Arguments Tuesday in LGBTQ Workplace Rights Dispute.” CNN, Cable News Network, 8 Oct. 2019, www.cnn.com/2019/10/08/politics/supreme-court-lgbtq-arguments/index.html.
Image: “The Biggest Pride Parties, Parades, and Celebrations in 2019.” The Manual, 7 June 2019, www.themanual.com/culture/guide-to-pride-celebrations-in-the-us/.
Comments