On Tuesday, October 8, 2019, the Supreme Court began hearing three separate cases regarding discrimination against LGBTQ employees in the workplace. The three cases are Bostuck v. Clayton County, Altitude Express Inc. v. Zarda, and R.G.& G.R. Funeral Homes v. EEOC; all argue whether or not discrimination based on sexual orientation and identity is protected under Title VII of the Civil Rights Act of 1964.
Title VII states “It shall be unlawful… for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” It is now the job of the Supreme Court to determine whether “sex” refers to only gender or can extend to sexual orientation and identity.
Currently, only 21 US states and the District of Columbia have banned discrimination against sexual orientation and gender identity. By bringing their cases to the Supreme Court, there is hope that such a ban on discrimination can become federal law. However, if the Supreme Court rules in the other direct, millions of Americans will remain at risk of losing their jobs for no reason other than who they are attracted to and their personal identities.
The first case, Bostuck v. Clayton County, exposes plaintiff Gerald Bostuck’s seemingly unjust termination from his job of 10 years after coming out as gay. Bostuck successfully worked to represent neglected and abused children in Clayton County, Georgia. Despite this, almost a decade into his service, Bostuck was fired just months after joining a recreational gay softball league.
In Altitude Express Inc. v. Zarda, the late Don Zarda (the case is being carried on by his sister Melissa Zarda and partner Bill Moore) had been fired under similar circumstances. As a sky-diving instructor, he was meant to be attached to a female student for the jump. Zarda aimed to lessen any feelings of unease from the woman by disclosing that he was gay. Unfortunately, according to the ACLU, he was terminated after the dive for that very confession.
The last case, R.G.& G.R. Funeral Homes v. EEOC, deals with discrimination against gender identity. Aimee Stevens had worked at Harris Funeral Homes for six years and had become a prominent employee at the company. However, once she revealed that she (who had been a man) was going to transition into a woman, she was fired. NPR correspondent Nina Totenberg writes that her boss, Tom Rost, claimed she was fired because he was “…concerned about how the families of the deceased would react to Stephens who was, in Rost’s words, ‘the face of the Harris Funeral Home.’”
The defendants used the ‘common sense argument’ in which they assert that “sex” only refers to gender. Defense attorney for Harris Funeral Homes, John Bursch, claimed on Tuesday that “Everyone understood in 1964 [when the Civil Rights Act passed] that sex meant biological sex,” Totenberg quotes. Other opponents to the plaintiffs argue that because the Civil Rights Act of 1965 does not explicitly state the inclusion of gender identity and sexual orientation, it is beyond the jurisdiction of Supreme Court justices.
On the other side, lawyers suggest that discriminating based on sexual orientation or identity is, in fact, discriminating based on sex as they also examine the broad definitions of what “discriminating based on sex” can mean. Vox News’ Ian Millhiser details that if a man loves romance novels and is fired for it while a woman who likes the same book sees no consequence, then that demonstrates basic sex discrimination. For people such as Bostuck and Zarda, this example is all too analogous to their reality.
Another position more relevant in the case of R.G.& G.R. Funeral Homes v. EEOC presents the idea that firing someone after they transition is a direct violation of Title VII. If someone is fired once they transition into a woman for no other reason than becoming a woman, what other explanation is there for this action other than basic sex discrimination?
While the rulings for these cases are expected to take months, it is important to understand the background of these cases and to reflect on the progress the US has made that is currently in jeopardy.
In 2015, Obergefell v. Hodges was the landmark case where the Supreme Court ruled 5-4 in favor of legalizing and recognizing gay marriage. The ruling was a close one, and these cases are expected to face similar outcomes regarding the divided opinions of the justices. However, the current Supreme Court has a Conservative majority and these justices, who of are a more particularly polarized age, may influence the ruling in favor of allowing workplace discrimination against transgender and gay/lesbian workers. If they rule in favor of the defendants, the possibility for further discrimination against the LGBTQ community will increase.
The LGBTQ community has had no shortage of discrimination throughout history. These cases bring to light the reality that despite gaining the right to marriage, the United States’ overly polarized and partisan beliefs continue to allow a community of people to be a controversial topic. There will be consequences to either ruling, so it is important for the Supreme Court to weigh the public reactions as well as rule to the best of their constitutional ability. Because the cases have just started to be heard, there is limited information as to the current standings of the justices on this issue, but these may become paramount cases to follow for the future.