Today, October 8, is a significant day for the LGBTQ community, one in which our rights hang in the balance before the U.S. Supreme Court. The Court will hear a series of three cases that will seek to answer whether Title VII of the Civil Rights Act of 1964 that prohibits sex discrimination in employment covers discrimination on the basis of someone’s sexual orientation or their gender identity. This decision, obviously, hold huge implications for our community. The employment rights of countless LGBTQ people in America are at risk.
For a number of years, the federal Equal Employment Opportunity Commission has found that the LGBTQ community has been covered by this category, but our opponents have been leading a targeted campaign to limit that interpretation. And, now, this issue will be decided before a Supreme Court that is at its best conservative leaning, and, at worst, is hostile to our community.
Even with the progress we’ve made, the prevalence of workplace discrimination based on sexual orientation or gender identity is shocking. Between 40 and 60 percent of lesbian, gay, and bisexual employees face workplace harassment and discrimination while upwards of 97 percent of transgender employees have experienced harassment and discrimination in the workplace, according to studies from the Williams Institute.
Of the three cases that the Supreme Court will hear arguments for, two of the cases are based on sexual orientation and the third is based on gender identity. All parties were fired for either being gay or transgender. Depending on what the Supreme Court decides, this ruling could be used across all federal agencies. The magnitude of this decision could impact our rights for housing, healthcare, credit decisions, education, and, of course, employment.
Currently 26 states do not have a state law protecting LGBTQ people from discrimination in the workplace on the basis of sexual orientation or gender identity. While we are fortunate to live in California where there are employment protections for the LGBTQ community, in part because of the work of the Los Angeles LGBT Center, these federal protections remain essential, especially in today’s economy where members of our community are often required to relocate for jobs and live in places where they could be terminated for simply being who they are.
Decisions on today’s cases are expected in June 2020. Regardless of what this Supreme Court decides, let’s be clear: we are not second-class citizens, and we will continue to fight to ensure that we are not treated as such. This fight includes championing every effort necessary to gain full and equal protections under federal law, which includes passing the Equality Act, which would explicitly add sexual orientation and gender identity to the 1964 Civil Rights Act. We need all supportive Americans to contact your representatives, write op-eds, march in rallies, register to vote…and VOTE! We need representatives in office that will truly support us and not push us back into the closet. Stay tuned! Stay vigilant! And fight! We will win!
Background on each of the LGBTQ employment discrimination cases:
- G. & G.R. HARRIS FUNERAL HOMES v. EEOC and AIMEE STEPHENS
Aimee Stephens worked as a funeral director at R.G. & G.R. Harris Funeral Homes. When she informed the funeral home’s owner that she is transgender and planned to come to work as the woman she is, the business owner fired her, saying it would be “unacceptable” for her to appear and behave as a woman. The Sixth Circuit Court of Appeals ruled in March 2018 that when the funeral home fired her for being transgender, it violated Title VII — the federal law prohibiting sex discrimination in employment. Aimee was the same capable employee before and after her transition, but she was fired because she took steps to be the woman she is. That’s sex discrimination.
- ALTITUDE EXPRESS INC. v. ZARDA
Donald Zarda, a skydiving instructor, was fired from his job for being gay. A federal trial court rejected his discrimination claim, saying that the Civil Rights Act does not protect him from losing his job for being a gay man. Tragically, in October 2014, Zarda died unexpectedly, but the case continues on behalf of his family. In February 2018, the full Second Circuit Court of Appeals ruled that discrimination based on sexual orientation is a form of discrimination based on sex that is prohibited under Title VII. The court recognized that when a lesbian, gay, or bisexual person is treated differently because of discomfort or disapproval that they are attracted to people of the same sex, that’s discrimination based on sex.
- BOSTOCK v. CLAYTON COUNTY
Gerald Lynn Bostock was fired from his job as a county child welfare services coordinator when his employer learned he is gay. In May 2018, the Eleventh Circuit Court of Appeals refused to reconsider an outdated 1979 decision wrongly excluding sexual orientation discrimination from coverage under Title VII’s ban on sex discrimination, and denied his appeal.