How the Supreme Court Ruling on October 8th Could Legalize LGBTQ Workplace Discrimination

In just under a week, on October 8th, The Supreme Court of the United States is hearing arguments in two cases that will determine workplace discrimination protections for LGBTQ+ persons for decades to come. Even more, the non-discrimination protections at issue here have wide ranging impacts for all people, not just those who identify under the broader LGBTQ+ umbrella.

This piece is an attempt to provide the broad strokes and general facts of the cases as they pertain to the constitutional questions the Supreme Court will attempt to answer.

The first case, Bostock v. Clayton County, Georgia, concerns,“whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination ‘because of… sex’ within the meaning of Title VII of the Civil Rights Act of 1964.”

The facts of this case center around the plaintiff Gerald Lynn Bostock, who, at the time, was working in child welfare services. He alleges that his employer fired him upon learning his sexual orientation. The district court in Georgia sided with lawyers representing the County, as did the 11th Circuit Court of Appeals Court.

The Supreme Court agreed to hear the Bostock case back in April 2018, along with Altitude Express Inc, v. Zarda, a similar case involving a sky-diving instructor who was fired for disclosing his same sex sexual orientation to a customer.

Clayton County representatives argued in their brief last year that the 88th Congress did not intend for Title VII’s language to be interpreted as providing workplace protections on the basis of sexual orientation. “The inconvenient reality for Petitioner is that the text of Title VII does not include sexual orientation as a protected class.”

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The Court will also hear arguments for a third case on October 8th concerning a transgender woman who was fired from her job at a funeral home shortly after disclosing to her supervisor her intent to transition. This case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, considers the same question as Bostock and Zarda, whether Congress intended for Title VII’s prohibition on employment discrimination “on the basis of sex” to extend to transgender individuals.

At the crux of the issue is a debate over the role of the Judiciary as an independent branch of government. Ultimately it’s a question of whether the Judiciary’s role is to interpret and apply laws that are often very old, written and passed in very different times than they come to be enforced, and to what extent the Supreme Court should extend or expand legislative protections to groups that might not have been on the minds of legislators at the time of the laws writing.

Conversely, conservatives are likely to argue that the Court usurps legislative authority from Congress by expanding the scope of laws Congress has written to encompass activities or protected groups that were not the original focus or intention of the law as it was originally written.

The Court will set out to determine what Congress meant by a particular clause within Title VII of the 1964 Civil Rights Act. Particular the specific wording of, “because of sex,” in the context of employment discrimination. In 1989 in the case Price Waterhouse v. Hopkins, the Court held that firing someone for not conforming to stereotypical gender norms violated Title VII. That’s to say the federal workplace protections at issue here are decades old at this point.

In one of the government’s briefs arguing against Title VII protections, lawyers made a claim that would undermine protections for cisgender heterosexual people who deviate from “typical” gender norms. A conservative majority opinion in Harris Funeral Homes could conceivably allow for an employer to legally discriminate against cis women who wear pants or eschew makeup, and leave employees with workplace protections only if their state government has passed them.

These cases comes at a fraught time for LGBTQ individuals, and transgender people in particular. At the time of this writing at least 19 transgender women, almost exclusively transgender women of color, have been murdered in 2019 alone.

Earlier this year on July 28th the Swiss Federal Court ruled that Caster Semenya, a runner from South Africa, will be required to take medication that suppresses the naturally-occurring testosterone in her body in order to defend her title in the 800-meter dash and in the upcoming World Championship this Fall. Also on July 28th a judge in North Carolina affirmed what’s called a “consent decree” in the case of HB2, North Carolina’s notorious Bathroom Bill, which required individuals to use bathrooms which corresponded with the gender marker as it was issued on their original birth certificate. This consent decree will actually bind future administrations in North Carolina to the agreement, which will protect trans individuals’ access to appropriate bathroom facilities. In early July the U.S. House of Representatives passed an amendment to the National Defense Authorization Act (NDAA) that codifies workplace non-discrimination protections within the military, and explicitly ends the ban on transgender military service members.

Should these nondiscrimination protections be struck down then LGBTQ people will no longer be protected by federal law against workplace discrimination. If your state has laws that prohibit employment discrimination based on sexual orientation or gender identity then you would still have recourse, but Congress would need to pass a law and the president would need to sign it in order to codify the workplace protections for LGBTQ people at the federal level.

Ultimately, the implications are so far reaching that it’s hard to even predict the extent to which an unfavorable ruling could unseat the gains made by LGBTQ+ advocacy groups in recent decades. We know that discrimination on the basis of sex, sexual orientation, and gender identity is already rampant, even with at least a modicum of protections in place. Explicitly removing those protections would eliminate the pretense in a lot of cases.

To that point the Equality Act was passed by the U.S. House of Representatives earlier this year, but appears to be yet another piece of legislation doomed to die in Senate Majority Leader Mitch McConnell’s legislative graveyard. This “legislative fix” would be the only solution to reconciling an unfavorable ruling in these cases.

Kelly Wright is a young professional who just recently moved to the New York City metro area. She writes on a range of topics including politics, anarchism, economics, and philosophy. In the past Kelly has written for the Center for a Stateless Society, Libertarianism.org, and PanAm Post. Her public speaking career has seen her speak at various outlets including Ani DiFranco's Babefest in 2017 and the Center for a Stateless Society's Mutual Exchange Radio. Twitter: @anarchakelly

Kelly has written 1 article for us.

6 Comments

    • They could release a decision as soon as Monday October 14, or as late as July. It is pretty likely that they’ll hold off on releasing the decisions, since there will more than likely be at least a few different opinions. If they decide that federal protections don’t extend to LGBT people, gay/bi people in 28 states and trans people in 29 will have no legal recourse if they are fired because of their identity.

  1. Hi! Great summary, but not exactly on point! The main question before the Court is whether discrimination based on sexual orientation or gender identity is discrimination “because of sex” and thus barred under the plain language of Title VII. The employees in Bostock and Altitude Express argue that discrimination based on sexual orientation is necessarily discrimination based on sex – e.g. discriminating against a woman because her sexual/romantic partner is a woman and not a man is discrimination based on sex. Aimee Stephens makes a similar argument based on gender identity and presentation. The argument is basically that the protection has always been there as part of the “because of sex” language, not that the Court should expand the reach of the statute to include protections for LGBTQ+ people that don’t currently exist under the plain language. The employers in all cases argue that “sex” under Title VII does not include sexual orientation or gender identity per the plain meaning of the law. The argument about the place of the legislature vs. judiciary is an argument the employers put forward in saying that Title VII doesn’t already protect LGBTQ+ workers under the plain language, and that it’s the place of the legislature to enact a separate law if they want to protect LGBTQ+ people rather than the judiciary’s place to “expand” the protections of Title VII. It’s a small distinction but important to the arguments!

    Thanks for highlighting these cases! You’re completely right that the implications are so vast that it’s really hard to predict exactly how far a bad decision would roll back LGBTQ+ protections.

    – an Autostraddle reader who is also a lawyer representing amici in these cases

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