SCOTUS MILE POST

Supreme Court Fills Cup Half Full in Momentous LGBTQ Employment Non-Discrimination Decision

By Dr. Warren J. Blumenfeld

June 15, 2020

 

At this momentous time, I see the cup half full.

“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 [of the Civil Rights Act of 1964] forbids. An employer who fires an individual merely for being gay or transgender violates Title VII.” Justice Neil Gorsuch writing for the majority 6 to 3 opinion covering three Supreme Court cases, two involving gay and lesbian people (Altitude Express, Inc. v. Zarda and Bostock v. Clayton County, Georgia) and one brought by a transgender person (R.G. & G.R. Harris Funeral Homes v. EEOC & Aimee Stephens).

Until this unified decision, for the last five years since the Supreme Court legalized marriage equality for same-sex couples (Obergefell v. Hodges), we could have gotten married one day and fired from our jobs the next in 26 remaining states.

Though an Obama-era policy protected trans employees from discrimination under Title VII of the Civil Rights Act of 1964, in a memo sent from his Department of “Justice” to U.S. attorneys, department heads, and federal agencies, Trump’s Attorney General, Jefferson Beauregard Sessions, reversed the policy. Session made clear that his department would no longer interpret gender protections in Title VII to include gender identity and expression.

Since 1994, federal legislators repeatedly introduced a bill to ban employment discrimination on the basis of sexual orientation (since 1994) in addition to gender identity (since 2007). Called the Employment Non-Discrimination Act (ENDA) (and changed to a broader bill in 2015 as the Equality Act), if it had passed, it would have granted many of the provisions provided by the current landmark Supreme Court decision, only earlier, possibly by decades.  

Though no such protections had been enacted on the statewide level by 1972, the first localities to do so that year were East Lansing and Ann Arbor, Michigan. The District of Columbia passed protections in all employment based on sexual orientation in 1973.

Pennsylvania was the first state to make public sector employment discrimination based on sexual orientation illegal in 1975. Wisconsin took the lead in 1982 to ban both public and private sector employment discrimination based on sexual orientation.

With the passage of its Human Rights Act in 1993, Minnesota became the first state to ban employment discrimination based on both sexual orientation and gender identity. Prior to the Supreme Court’s ruling, approximately 23 states, the District of Columbia, and over 400 cities and counties have passed non-discrimination employment policies based on sexual orientation and gender identity.

Until the Supreme Court’s latest protection, these state, city, and county ordinances were always at rise for legislative and popular repeal depending on the political climate of any given moment.

Take, for example, a movement led by former beauty queen and Florida Orange Juice Commission spokesperson, Anita Bryant, whose so-called “Save Our Children” campaign succeeded in overturning a gay-rights ordinance in Dade Country, Florida in 1977 – though it was reinstated in 1988. Several other local municipalities have also succeeded in repealing protections granted to LGBTQ over the years.

Half Full

The recent Supreme Court decision protecting LGBTQ people from employment discrimination has been a very excruciatingly long and difficult process, and we can take some pause and savor this monumental victory. After we catch our breath, though, we must remain forever vigilant not to loose ground while continuing to push forward.

First, these protections, while we are given greater assurances since they come as a ruling from the highest court in the land, are never enshrined in stone, for they can be subverted many ways. The decision can be overturned in a restructured Court or circumvented or weakened by federal legislation.

If an employer wants to get rid of us, they simply need to fire us on the scurrilous charge of taking an extra five minutes for lunch or coming in late a few mornings. They have many weapons in their firing arsenals.

The recent Court decision fails to grant us other protections of which we have long been deprived such as non-discriminatory adoption and foster care policies.

As we rejoice over our Court victory, more and more trans women of color will face continued violence and death. Members of the trans community often suffer the consequences of other truth tellers of the past. Nearly every two – three days, a person is killed somewhere in the world for expressing gender diversity. The overwhelming majority of murders are of trans women of color.

In addition, the National Center for Transgender Equality found that 16% of transgender adults (including 21% of transwomen) have been incarcerated in prison or jail at some point in their lives. Nearly half (47%) of black transgender women have been incarcerated.

These high rates are associated with disproportionate rates of poverty, homelessness, societal and workplace discrimination, involvement in street economies, and sometimes, bias from law enforcement. They are also at higher risk for harassment, abuse, and violence in juvenile detention facilities, jails, and prisons.

“Corrections” officials routinely deny transgender people transition-related medical care, and they often suffer prolonged sentences of isolation.

I find it difficult to give my emotions over to fullhearted jubilation today, even with the Supreme Court decision, when police officers continue to pull over, violate civil rights, and murder unarmed black and brown people in our country.

Therefore, our Supreme Court triumph must be seen as a consequential mile post on the journey toward freedom and liberation for all, but not the end post – not the final destination.

 

Dr. Warren J. Blumenfeld is author of The What, The So What, and the Now What of Social Justice Education (Peter Lang Publishers), Warren’s Words: Smart Commentary on Social Justice (Purple Press); editor of Homophobia: How We All Pay the Price (Beacon Press), and co-editor of Readings for Diversity and Social Justice (Routledge) and Investigating Christian Privilege and Religious Oppression in the United States (Sense).