Tuesday, October 8, 2019, is one of the most important dates in American history for LGBTQ people. Today the U.S. Supreme Court heard oral arguments in three separate cases all surrounding workplace protections for LGBTQ people.
Heading into the historic hearing, a handful of state and local level laws offer protections to LGBTQ people based on sexual orientation and gender identity. No explicit protections exist protecting LGBTQ people at the federal level, however. Up until recently, some courts have interpreted Title VII of the Civil Rights Act of 1964 to be LGBTQ-inclusive based on the ‘sex’ category.
What’s At Stake
The oral arguments consider whether sexual orientation and gender identity discrimination constitute a form of workplace sex discrimination under Title VII. The potential consequences of this hearing are far-reaching.
The three cases included in the hearing – one of which we’ve covered here individually – are:
The first two cases deal with sexual orientation discrimination as a form of workplace sex discrimination while the third deals with gender identity discrimination.
While the oral arguments are only about Title VII workplace discrimination, the outcome of the hearing has the potential to affect all federal level LGBTQ rights including Title IX education protections as well as protections assumed under the Fair Housing Act – both of which also rely on federal court interpretations viewing sexual orientation and gender identity discrimination as a form of sex discrimination.
The Washington Blade offered insight earlier this summer into what to expect next week. They reported:
The American Civil Liberties Union is representing the estate of Donald Zarda, which is suing Altitude Express on the basis of the late gay skydiver being terminated from his job for being gay, and Aimee Stephens, a funeral worker who was terminated from Harris Funeral Homes after coming out as transgender.
Last week, the ACLU submitted its respondent brief for the Zarda case to lay out its arguments for why anti-gay discrimination should be considered a form of sex discrimination. Among other things, the ACLU argues anti-gay bias amounts to sex stereotyping and associational sex discrimination.
That brief states in part:
“Firing a man because he is attracted to other men is like refusing to hire a woman because she has school-age children, failing to promote a woman because she is too ‘macho,’ or countenancing the sexual harassment of a man who is perceived by his coworkers to be vulnerable.”
The Washington Blade added:
The ACLU also filed its respondent brief in the case of EEOC v. Harris Funeral Homes to make the argument anti-transgender discrimination is a form of sex discrimination.
“Had Ms. Stephens been assigned a female rather than a male sex at birth, Harris Homes would not have fired her for living openly as a woman,” the brief says. “Because Harris Homes would have treated Ms. Stephens differently had her assigned sex at birth been different, its decision to fire Ms. Stephens violated Title VII.”
Representing Gerald Lynn Bostock, a municipal worker alleging anti-gay discrimination within Clayton County in Georgia, is the Atlanta-based law firm Buckley Beal, LLP.
ACLU attorney Chase Strangio offered cautionary words on Twitter in July urging LGBTQ people and their allies to keep a close eye on these hearings:
Strangio is no stranger to high profile cases – he’s represented both Gavin Grimm and Chelsea Manning in court.
Recent changes on the high court shaped by Trump threaten to set back LGBTQ civil rights by decades – particularly since the Trump administration actually filed a brief favoring discrimination against LGBTQ people.
Right now, 22 states prohibit employment discrimination and 21 based on gender identity. A decision against LGBTQ protections could eliminate existing protections in every state and local jurisdiction with them on the books.
LGBTQ rights at the federal level from employment and housing to education aren’t the only thing at stake though; a stricter interpretation of Title VII sex discrimination would affect a significant portion of non-LGBTQ related law as well.
Zoom out a little further and these three cases loom even larger. In 1989, the Supreme Court held that gender stereotyping is itself a form of sex discrimination — a woman may not be fired, for example, because her bosses deem her too masculine in appearance or conduct. Yet, as one federal appeals court explained in 2017, same-sex attraction is “the ultimate case of failure to conform” to a gender stereotype. Something very similar could be said about the stereotypical view that all people’s gender must align with the sex they were assigned at birth.
Thus, if the Supreme Court holds that it is lawful to discriminate against gay or trans workers, it could upend the 30-year-old rule against gender stereotyping. All workers — straight or queer; trans, cis, or non-binary — could become less secure in their jobs. And even if the Court does not go that far, it would be difficult to rule against these plaintiffs without carving out a significant exception to the broad rule that sex stereotyping is not allowed.
The National Women’s Law Center touched on this in an amicus brief filed with the high court. They (and others in their brief) stated “the arguments advanced by the employers, if accepted, would roll back protections against discrimination based on sex stereotyping that has long been understood by federal courts, the Equal Employment Opportunity Commission (EEOC), employers, and employees in many parts of the nation as impermissible workplace discrimination.”
Zoom out a little more and Zarda, Bostock, and Harris Funeral Homes are an acid testthatwill reveal how committed several justices are to their own stated principles. Many of the Court’s most conservative members are avowed textualists — meaning that they hew to the late Justice Antonin Scalia’s belief that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” The text of the law must be obeyed, under this view, even when that text leads to results that its drafters never would have imagined.
Vox went on to explain the Pandora’s Box the Supreme Court would open with singling out certain forms of discrimination that should fall under sex discrimination that may not have been intended when the law was originally written. They explained:
As the brief from the women’s groups warns, “no principled reason justifies limiting Title VII so as to prohibit some, but not all, forms of sex stereotyping,” and any attempt to establish such limits would “make Title VII impossible to navigate for courts, employers, and employees, who would have to guess at whether a particular behavior or conduct related to a sex stereotype is not related to sexual orientation or gender identity—and thus, prohibited by federal law—or, whether it was tied to sexual orientation or gender identity and then deemed outside the scope of sex discrimination barred by Title VII.”
Unlike sex stereotyping, sexual harassment is not explicitly at issue in Zarda, Bostock, or Harris Funeral Homes. Yet a decision for the defendants in these cases could eventually signal an end to legal protections for victims of sexual harassment.
As explained above, the central tension in all three of these cases is whether Title VII should be given a textual interpretation or whether its scope should be limited to the way the law was understood in 1964. But the legal concept of “sexual harassment” arose several years after Title VII became law.
Many sources claim that the term was coined by Mary Rowe, an official at the Massachusetts Institute of Technology, who used term in a 1973 report. In 1979, legal scholar Catherine MacKinnon wrote a seminal book, Sexual Harassment of Working Women, which played a significant role in popularizing the idea that sexual harassment violates Title VII. The Supreme Court didn’t embrace this view until its 1986 decision in Meritor Savings Bank v. Vinson, which held that “when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.”
Thus, a view of Title VII that leans too hard on how the law was understood in 1964 could potentially wipe out protections for victims of sexual harassment. It could render Title VII a shriveled husk of what it’s been since the Reagan administration.
Zarda, Bostock, and Harris Funeral Homes, in other words, are not simply landmark LGBTQ discrimination cases. They could potentially undercut many of the foundations of America’s anti-discrimination law. Should the defendants prevail, the Supreme Court could potentially turn the clock back a third of a century.
LGBTQ people aren’t the only group who have a lot to lose. Keep an eye on these hearings.
- Department of Justice Launches Attack on LGBTQ Civil Rights
- DOJ Rescinds Obama-Era Title VII Transgender Worker Protections
- DOJ Releases Virulently Anti-Gay ‘Religious Liberty’ Memo
- Federal Court Says Existing Law Covers LGBTQ Workplace Discrimination
Originally posted on Peacock Panache. Re-posted with permission.