happy pride month!
First and foremost, happy pride month everyone! June was chosen as pride month for the LGBTQ+ community in honor of the Stonewall Riots that occurred in June of 1969. So, in June communities come together to celebrate the achievements, importance, and value of the LGBTQ+ community everywhere throughout the world. So, since 1969, you’d think we made significant progress and we have, but we still have much to accomplish in terms of overall equality for people in the United States. We face several challenges and wins, one of which came from our Supreme Court this last week in the groundbreaking 6-3 decision that made discrimination against LGBTQ+ workers illegal.
Supreme Court win
So, by now I’m sure many of you have heard the good news: The Supreme Court ruled it illegal for businesses to discriminate against individuals on the basis of sexual orientation, gender identity, or sex as included under the Title VII law! I’ll pause for a minute here so you can do your party dance with me, because yes, this is a HUGE win!
With that being said, maybe it’s time to learn a little bit more about the case that brought us this win. And even more importantly, the way in which three justices decided against equality, and what we as individuals can do to hold them accountable.
You know the ruling, but do you really know how Bostock v. Clayton County, Georgia changed the world? Well, let’s meet the players.
First up we have Gerald Bostock. Bostock worked for Clayton County, Georgia, as a child welfare advocate for over a decade. He had won the company several national awards thanks to his services. After ten years of working for the company, Bostock started to play on a gay softball league. After influential members of the community started hearing about his involvement in this sport, they confronted his employers and made disparaging comments about his sexual orientation and identity. Soon after, Bostock was fired by Clayton County, Georgia, sighting conduct that was “unbecoming” of a government employee. This is where we meet him in court.
Next up we have Donald Zarda. Zarda was a sky diving instructor at Altitude Express in New York, and had worked with the company for several seasons. One day, Zarda was doing a tandem jump with a customer, and in an attempt to make her feel more comfortable with the awkward situation of harnessing her, he mentioned that he was gay. Following the jump, Zarda was fired with no specific reason given. While this is where we meet him in court, I am sad to say that he has since passed away in 2014 due to a BASE jumping accident.
Lastly we have the beautiful Aimee Stephens. Stephens was employed by R.G. & G.R. Harris Funeral Homes in Garden City, Michigan. When she initially got the job, she identified and presented herself as male. However, a couple years into her work, she began to seek treatment for loneliness and despair, in which her doctors diagnosed her with gender dysphoria. They recommended that she live the rest of her life out as a woman in order to enrich her mental health and state of well being. Nearly six years into her job, Stephens sent a letter to her employer stating that she planned to, “live and work full-time as a woman,” when she came back from her planned vacation. The Funeral Home fired her before she left for this vacation telling her that, “this is not going to work out.” This is where we meet her in court. Unfortunately, she passed away at the age of fifty-nine this May, prior to the court decision.
how the game played out
Now that we know our players, we can get into what happened in the game. To start, all of our players sued their employers for unlawful termination under Title VII. Title VII states explicitly that it is unlawful for, “an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.”
So, the players, the plaintiffs, that we just mentioned, had to prove that the term “sex” in the original formatting of Title VII was inclusive of sexual orientation, and gender identity, to which employers who discriminated on these things were doing so illegally. After failure in the lower courts, and in appeal courts, the case fought its way to the Supreme Court, which is where things got real.
Supreme Court rules no to discrimination against lgbtq+ individuals!
When the case reached the Supreme Court, the Court ruled that all of the businesses had unlawfully discriminated against their employees on the basis of sexual orientation and gender identity, which they found to be protected under Title VII. Let’s dive into more of the reasoning below.
“ordinary public meaning”
To begin, the Supreme Court first had to decide what the question it needed to answer was. In this case, they found this to be determining the ordinary public meaning of the commands in Title VII. More specifically, whether or not the section over “sex” discrimination was inclusive of sexual orientation and gender identity. For a quick reference to how these terms are all different, please refer to the chart below.
|Sex||A persons status as either male or female [as] determined by reproductive biology.|
|Sexual Orientation||A persons sexual identity in relation to the identities they are attracted to. This can include straight, gay, bisexual, pansexual, asexual, queer, and several other individuals.|
|Gender/Gender Identity||A persons stats as being somewhere on the gender spectrum as identified by their own experiences and choices. Someone may identify as male in gender but have female sexual organs.|
So, in having to decide what the ordinary public meaning of “sex” was within Title VII, the Court had to look at Title VII under the time lens of when it was written. This happened to be in 1964- a time during which sex was defined only as being male or female according to sexual organs assigned at birth. The Court takes this definition and says, okay, we accept this as is, let’s run with it.
From here, the Court explains what is meant by the “because of” phrase of Title VII. The law states that businesses cannot discriminate against employees because of their sex. The Court shows how the phrase “because of” is the same legally as “by reason of,” or “on account of.” So what does this mean? Well, it means that discrimination against someone on the basis of their sex in ANY WAY, SHAPE, or FORM, is illegal.
Think about it this way: you cannot legally fire someone because they are a woman. Even if your field is filled with predominantly female positions, even if you treat all women the same, even if you need an excuse to fire them for poor work ethic- discrimination on the basis of sex is ILLEGAL plain and simple. But, it’s never that easy when it comes to Supreme Court Cases. Especially when it is unclear if sexual orientation and gender identity discrimination stem out of sex discrimination.
Ultimately, the Supreme Court found that the Title VII verbiage ensures that any discrimination IN PART by sex, is illegal. From here, the Court found that sexual orientation and gender identity are both things rooted in sex itself. For example, sexual orientation perceptions are perceived by your natural sex by the public. For example, a man who is dating a male-sexed person is publicly considered homosexual. In terms of gender perception, the issue of ones gender is rooted often times in disagreeing with their sex. As such, these two categories fall under the umbrella of sex discrimination and are therefore illegal under Title VII.
what does it mean
So, that makes workplace discrimination on the basis of sexual orientation and gender identity illegal. But why is that a big deal?
It’s a big deal because it means that members of the LGBTQ+ community are able to live their true, authentic selves both at home, and at work without the fear of losing their jobs. It also means that they now have legal redress options whenever an employer refuses to hire them, or fires them in part because of their sexual orientation or gender identity! These protections are things that straight individuals have never had to consider, because we have always been the default. However, this case removes the default setting of heterosexuality, and instead allows for individuals to be themselves,and have the same legal rights as anyone else. Which, if we’re being honest with each other here, should never have been up for debate to begin with.
why wasn’t this a unanimous decision?
As I mentioned earlier, this case was a 6-3 decision in the Supreme Court, and although justice prevailed, it is often difficult to imagine who could vote against human rights and why. Well, let’s see the opposers, and their reasoning behind voting no for LGBTQ+ workplace protections.
Opponent one and two
The first two opponents are Justice Clarence Thompson (on the left) and Justice Samuel Alto (on the right). Justice Alto wrote one of the two dissenting opinions on this case, and Justice Thompson joined him. In this dissent, Alto relied mainly on the idea that the Supreme Court did not have the authority to rewrite the law of Title VII to include terms like “sexual orientation,” and, “gender identity.”
Alto finds that the Court on this case overstepped its bounds. He argues that the Court should not interpret the law to mean anything more than it is already explicitly written as. Flabbergasted by the other Justices, Alto remarks that:
This statement alone might be what is so confusing about the opposition’s argument. It is difficult for me to accept the fact that we must apply laws only as they were initially written, when we continuously do the opposite in practice. Take, for example, the second amendment. If we were to look at the wording and take into account ONLY the time that this was written, then it would be clear to see that the right to bear arms would be limited to firearms that took nearly eight minutes to load one shot and had a poor level of accuracy.
But we don’t think that way. We don’t apply the language of the law exactly as it was, we apply what we call the spirit of the law which is the way in which the authors intended for it to be applied. Often times, one of the hardest things about writing laws is that making them too specific can cause issues in the applicability of the law overall. For example, think about how hard it would be to charge someone with murder based on a statute that was written before guns that defined murder solely as killing someone with your bare hands. The tighter laws are written, the harder it is to achieve justice. So, instead, the legislature makes laws a little vague (like saying murder is killing with a deadly object), to ensure that they are applicable to most cases.
As such, the idea behind Title VII is that individuals should not be fired or discriminated against on the basis of who they are as a person. This includes things that they could change (like their religion), and things they cannot easily change (like their race, sex, sexual orientation, or gender). Taking in account the spirit of the law makes this case much easier to see.
The way in which Justice Alto goes wrong here is by assuming that a legislature in 1964 would have put terms like “sexual orientation,” and “gender identity,” into the Title VII law if they had wanted to. The issue here is that the dissemination between gender and sex dichotomy is fairly recent, and is almost impossible to conceive of a 1964 legislature coining these terms to put into a law when they were not even in common discussions yet. However, the spirit of the law is in the verebage of Title VII, though Alto ignores it.
Furthermore, the idea that the worst abuse of power to come out of the Supreme Court is deciding that sex discrimination is inclusive of sexual orientation and gender perception discriminations is brutally disrespectful. To equate interpreting the statute to protect more individuals as being the same level of abuse as used by courts that upheld Jim Crow laws, declared slaves to be property, not people, and found that separating races was entirely legal at one time is a joke. The argument presented by Alto and supported by Thompson is nearsighted, hypocritical, and overall ignorant of the ideals of a progressive nation.
The last opponent to the decision in this case was Brett Kavanaugh. While he agreed with Justices Thompson and Alto on the point that the Court abused its power, he ultimately argued that the Court had improperly decided on the ordinary meaning of the term “sex”.
To Kavanaugh, the ordinary meaning of sex would be one that included the biological differences between men and women in it only. He argues that the meaning of sex is defined as this because it is what the general population assumes when asked, and is most likely what the original legislatures meant when they included it in the verbiage of Title VII.
While this would be a valid point objectively, the issue here is that the way to decide what the ordinary meaning of a term is extraordinarily subjective. To Kavanaugh, the individuals he surrounds himself with may all believe sex to be strictly biological, but the “ordinary meaning” of a college classroom on gender studies, may be entirely different. The use of “ordinary meaning” in law is helpful to a certain extent, but when ambiguity arises, we must look at the intent of the original law to clear up all confusions.
Moreover, Kavanaugh tries to make the distinction between sex discrimination and sexual orientation discrimination by making the following statement:
The issue in this statement however is that it fails to consider the way in which individuals who are transgender can be discriminated on both because of their sex and sexual orientation. While these forms of discrimination are different, they are also closely intertwined to the point where considering them entirely independent of one another would weaken their stances as a whole and separately. While Kavanaugh makes a good point about the need for “ordinary meaning” to be cleared up, he has a lapse in judgement on this case. What do you think?
How do we help?
Well, there is always one main way to help and that is to register to vote and then ACTUALLY go out and vote.
Supreme Court Justices are appointed for life by the President and their appointments can change the law in several ways for several generations. So, when electing your Presidential pick this November, please remember that there is possibly a couple seats for Justice on that ballot that need to be considered as well.
Furthermore, if you are disappointed with your Justices, contact them. Contact your representatives, contact your officials, and make your voice heard. Do not forget in these treacherous times that your voice is valuable, loud, and mighty important. The government is here to work for us. Demand that they be held accountable.
For more information on registering to vote and finding out your voting stations/ballots, please visit: https://www.usa.gov/register-to-vote
Want more information?
For more information on the landmark Supreme Court Case, feel free to see the official court recording below.
It was great talking with you all! Leave your thoughts down below and I’ll see you in the next one!