Take Pride

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Fifty years ago in June, the first Pride march took place in New York City as a protest and call for the liberation of members of the LGBTQ+ community.[1] Now, on June 15, 2020, the Supreme Court of the United States decided that sexual orientation and gender identity discrimination are prohibited under Title VII of the Civil Rights Act. This decision ultimately confirmed the “simple but profoundly American idea” that every human being deserves to be treated with equal respect and should be able to take pride in who they are.[2] Arguably, the crux of anti-discrimination legislation in the United States was the Civil Rights Act of 1964. The act ended segregation in public places and Title VII of the act banned discrimination by employers and labor unions on the basis of race, color, religion, sex, or national origin.[3] Title VII also created an Equal Employment Opportunity Commission with the power to file lawsuits on behalf of workers who had been wrongfully treated or terminated.[4] Over the past fifty years, many disputes have arisen due to the unclear meaning behind the term “sex” in Title VII. Many have argued that at the time the act was written, “sex” only referred to whether someone was male or female. Today, according to UCLA’s Williams Institute, the LGBTQ+ community is comprised of roughly 1 million workers who identify as transgender and 7.1 million lesbian, gay and bisexual workers.[5] Thus, over the past fifty years, countless people and LGBTQ+ advocacy groups have argued that “sex” also includes sexual orientation and gender identity.

Until recently little more than twenty states had laws preventing job discrimination due to gender identity and sexual orientation, thus leaving nearly thirty states with no laws protecting LGBTQ+ employees.[6] But thanks to the Supreme Court’s recent decision, workplace discrimination based on sexual orientation and gender identity is now outlawed nationwide.

The Supreme Court’s holding of Bostock v. Clayton County, Georgia, was a combined ruling in three cases — two cases brought by Gerald Bostock and the estate of Donald Zarda about discrimination against gay people, and one case brought by Aimee Stephens about discrimination against transgender people.[7] Justice Neil Gorsuch, President Trump’s first appointee to the Supreme Court, wrote the opinion and was joined by Chief Justice John Roberts and the Court’s four liberals.[8] The central dispute in all three cases was whether the term “sex” in Title VII includes sexual orientation and gender identity. Although the law doesn’t mention “sexual orientation” or “gender identity” explicitly, Justice Gorsuch concluded that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[9] Furthermore, Gorsuch stated that “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 different sex. Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids.”[10]

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The Supreme Court’s decision is a huge milestone for the LGBTQ+ community, and Alphonso David, the president of the Human Rights Campaign, tweeted that the decision is a “landmark victory for #LGBTQ equality.”[11] Sarah Kate Ellis, the president of the LGBTQ advocacy group GLAAD (Gay and Lesbian Alliance Against Defamation), joined and said that the decision “is a step towards affirming the dignity of transgender people, and all LGBTQ people.”[12] Other influencers and supporters of the LGBTQ+ community, like Tim Cook– CEO of Apple and “one of the only openly gay leaders of a Fortune 500 company”– took pride and celebrated the decision.[13] SAG-AFTRA, the Screen Actors Guild- American Federation of Television and Radio Artists, also applauded the Supreme Court ruling and stated that “This is one of the most significant decisions about employment law in many years and a long overdue blow to state-sanctioned discrimination.”[14]

Every LGBTQ+ employee in the United States is now protected against workplace discrimination, but the impact of this ruling doesn’t stop there. Other federal laws like the Fair Housing Act, Equal Pay Act, and Equal Protection Clause of the Constitution all prohibit discrimination based on “sex.”[15] Thanks to the Supreme Court’s Bostock ruling, eventually all of these areas of law should include sexual orientation and gender identity in their interpretation of “sex” as well.[16] Although future cases will have to be decided to effectively change these other federal laws, LGBTQ+ people can celebrate their first of many victories to come, and finally, truly take pride.

[1] https://variety.com/2020/politics/news/supreme-court-gay-lesbian-lgbt-discrimination-1234635310/

[2] Id.

[3] https://www.history.com/topics/black-history/civil-rights-act

[4] Id.

[5] https://www.cnn.com/2020/06/15/politics/supreme-court-lgbtq-employment-case/index.html

[6] Id.

[7] Id.

[8] https://www.rollingstone.com/politics/political-commentary/supreme-court-decision-lgbtq-employment-scotus-1015243/

[9] Id.

[10] https://www.cnn.com/2020/06/15/politics/supreme-court-lgbtq-employment-case/index.html

[11] Id.

[12] Id.

[13] https://variety.com/2020/politics/news/supreme-court-gay-lesbian-lgbt-discrimination-1234635310/

[14] https://www.sagaftra.org/statement-supreme-court-ruling-anti-discrimination-protection-lgbtq-people

[15] https://www.rollingstone.com/politics/political-commentary/supreme-court-decision-lgbtq-employment-scotus-1015243/

[16] Id.

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Megan Kern is a second-year law student at Case Western Reserve University School of Law in Cleveland, Ohio.

 

Supreme Court Affirms LGBTQ+ Workers Rights

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By Eryn L. Pollard

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We are still mourning the deaths of Black men, Ahmaud Arbery, George Floyd, Rayshard Brooks, Black women, Pamela Turner, Sandra Bland, Breonna Taylor, and Black transgender and non-binary people, Iyanna Dior and Toney McDade, and we will continue to demand justice for the those who have lost their lives to the excessive use of lethal force by law enforcement.

Bust as of Monday June 15, 2020, amidst a global pandemic, what may be an economic crisis, and a revelation that systemic racisms and privilege does exist, as well as an information overload, there is still cause for celebration.

As of June 15, 2020, The Supreme Court of the United States issued an opinion in Bostock v. Clayton County, Georgia, 590 U. S. 1 (2020), protecting employee’s rights, condemning discrimination based on sexual orientation or gender identity under the Title VII of the Civil Rights Act of 1964.

 

This is a hallmark case, as in December of 2012, United States Attorney General Eric Holder issued a memorandum discussing the scope of Title VII of the 1964 Civil Rights Act and whether it was unconstitutional to discriminate in the workplace based on and individual’s “sex”. Thus, providing clarification on the opinion that Title VII of the 1964 Civil Rights Act extends workplace protections to “gender identity” ­– protecting transgender and non-binary American citizens. A.G. Holder wrote, “After considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII’ s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.”[1] He then addended, “[t]he most straightforward reading of Title VII is that discrimination “because of … sex” includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.” [2]

 

Despite A.G. Holder’s attempts to clarify the Justice Department’s position on Title VII and its relation to gender-identity and sexual orientation protections, in October of 2017, United States A.G. Jeff Sessions withdraws Holder’s 2014 memorandum. A.G. Sessions asserted that the Justice Department is taking an opposite position and “Title VII expressly prohibits discrimination “because of … sex” and several other protected traits, but it does not refer to gender identity. “Sex” is ordinarily defined to mean biologically male or female [. . .] Accordingly, Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including trans gender status.” [3] Consequently, as of 2016 the Justice Department made it very clear that they were no longer following the board definition of “sex” to include “gender-identity”.

 

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But as of June 15, 2020, The Supreme Court of the United States has made their interpretation of Title VII of the 1964 Civil Rights Act very clear. In Bostock v. Clayton County, Georgia, 590 U. S. 1 (2020), the S.C. assess three cases which all had the common denominator of an employee being fired after reveling his/hers/their sexual orientation and/or gender identity. The S.C. uses a “but for” causation standard in that “[i]f an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.” [4] As such, even if an employer fires an employee because she is homosexual or transgender, and “two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies) [. . . ] Title VII doesn’t care” and liability attaches. The Court goes on to say, “[f]or an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.” 883 F. 3d, at 135 (Cabranes, J., concurring in judgment).” [5] As such, on the grounds that the plain meaning interpretation of the words “sex” in Title VII, gender identity and sexual orientation is included and it is unconstitutional to discriminate in the workplace based on a person’s sexual orientation or gender identity.

 

But, what about other circumstances and environments that are not protected? For example, are transgender and non-binary conformists allowed to use the restrooms that represent their gender-identity? This is an open question and a highly debated social and human rights issue. Not just days before this landmark Supreme Court opinion was published, did we see someone well known in the literary and entertainment industry – J.K. Rowling – giver her opinion on a narrow, biological interpretation of “sex”.[6] The Supreme Court makes it abundantly clear that under “Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” [7]

 

Consequently, although Bostock v. Clayton County, Georgia, 590 U. S. 1 (2020) is a landmark case providing Federal protections to members of the LGBTQ+ community, we as a society, we as a country, we as people, have a long way to go.

 

[1] Memorandum from the United States Att’y Gen. Eric Holder to United States Attorneys Heads of Dep’t Components on Treatment of Transgender Emp’t Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Dec. 15, 2014) (on file with justice.gov).

[2] Id.

[3]Memorandum from the United States Att’y Gen. Jeff Sessions to United States Attorneys Heads of Dep’t Components on Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964 (Oct. 4, 2017) (on file with justice.gov).

[4] Bostock v. Clayton County, Georgia, 590 U. S. 1, 11 (2020).

[5] Id. at 12.

[6] J.K. Rowling (@jk_rowling), TWITTER (Jun. 6, 2020) https://twitter.com/jk_rowling/status/1269382518362509313?s=20.

[7] Bostock v. Clayton County, Georgia, 590 U. S. 1, 31 (2020).

 

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Eryn L. Pollard, is a second-year law student at Notre Dame Law School and is the secretary of the Black Law Students Association.