Sexual Orientation & Gender Identity: The Supreme Court weighs in on the fight against discrimination

Update: June 15, 2020

On June 15, the U.S. Supreme Court ruled that gay and transgender employees are protected under Title VII. The decision offers much-needed clarity for the LGBTQ+ community in the workplace and could set the stage to combat the increasing violence in this community.  The League issued a press release in support of this decision.  

The ruling in Bostock v. Clayton County, et al, like many other rulings that concern the LGBTQIA+ community is also a referendum on human rights. Just like in Obergefell v. Hodges, this ruling affirms that we are human beings, with full rights under Title VII and are assured of the full protection of the law when exercising those rights to exist with whatever our sexual orientation and gender identity may be, whether or not they conform to the majority. I am saddened that Daniel Zarda and Aimee Stephens are no longer with us and unable to share joy in this ruling, but I am grateful that they and Gerald Bostock, took up the fight to ensure that our rights were affirmed and enshrined within the law. 

However, while I celebrate this today, I also know that it is limited in scope to Title VII. We must continue our work in support of the LGBTQIA+ community, because per our Diversity, Equity, and Inclusion policy, everyone must be a part of creating a more perfect democracy.  

The League joined as amici for a trio of cases challenging whether anti-LGBTQ discrimination is a form of sex discrimination, in order to demonstrate to the Court the importance of this issue to the civil rights litigation nationwide. In the second case, R.G. & G.R. Harris Funeral Homes v. EEOC, the funeral home fired funeral director Aimee Stephens after finding out she was transgender. This Sixth Circuit Court of Appeals ruled in March 2018 that the funeral home violated Title IX prohibitions against sex discrimination. In the final case, Altitude Express, Inc v. Zarda the lower court rejected Zarda’s Title IX discrimination claim stating that the Civil Rights Act does not protect him from losing his job because he is a gay man. The Second Circuit Court of Appeals ruled in his favor holding that Title IX prohibits sex-based discrimination which included discrimination based on sexual orientation.  

Original Post: October 3, 2019

In the mid-1990s, when I was about thirteen, I came out as bisexual to select friends and family, including my mother, who said at the time, “it doesn’t matter.” At the time it sounded dismissive of something that I definitively knew about myself, but I chose not to fight that battle, as while it stung, it wasn’t a crisis. I mostly left it alone and we just didn’t really talk about my sexuality, for twenty more years. But around five years ago, right after another National Coming Out Day where I felt like half of me was still in the closet, we finally had a much fuller conversation, in which she explained that “it doesn’t matter” was intended very literally. Information about my (or others’) sexuality gives her zero meaningful data with which she can evaluate me as a person. It’s purely demographic; it does not provide insights as to whether I’m kind or cruel, constructive or destructive, selfish or charitable. My coming out meant nothing to her because it didn’t change anything: she still loves me, still rolls her eyes at half the things I wear, and still doesn’t care about the sex or gender of anyone I bring home to meet the family.

That clarification means that on an individual basis, I feel supported, but when I zoom out and use the diversity, equity, and inclusion (DEI) lens, it becomes a great vision, but it’s not a methodology that works for where we are right now as a nation. My mother and I both agree on that and this year saw both of us attending Pride events on opposite sides of the country, because we know that we need to be there to make that grand vision happen. It’s one reason that I am more visibly out—I hope that by normalizing my sexuality, I can help us move towards that concept, where it’s not a big deal, it’s just yet another fact about me, like my height or age—boring and irrelevant the vast majority of the time.

The other big reason I’m out is because I was lucky that I met other members of the LGBTQIA+ community when I was a teenager; they were in my life, my whole life, but sexual orientation and gender identity were often hidden when I was younger, and I grew up not understanding this part of myself and wondering why my feelings didn’t make sense in the world I knew. Members of the LGBTQIA+ community gave me the language I needed to describe myself, and I remember the moment that I learned the word “bisexual.” It was not just a lightbulb turning on, but a powerful shockwave. I suddenly knew that there were others like me, that this wasn’t something wrong with me, that my sexual orientation was an actual normal part of the human condition. For someone who has always been the weird kid, who daydreamed about being normal, or at least less weird, this gave me that in one small way. All because some people gave me a single word that described my experience. I’d love to shout their names from the rooftops and celebrate them for showing me the power of a single word, but I cannot and will not do so. We still live in a time and place where outing someone can be fatal for them, whether literally, as we have seen too many LGBTQIA+ people die by suicide or violence, or economically, by virtue of ending their employment.

This may seem surprising, given the social change we’ve seen over the past few decades, let alone the past couple centuries, but the truth is that the United States doesn’t have a great track record with equality. “All men are created equal” and “we the people,” while beautiful sentiments, were never intended to be truly inclusive at the time of their creation. As a nation, we have made efforts to rectify that, but it has not been a short or easy road. It took almost a century for the United States to get from the Constitution to the 14^th Amendment, about 50 more years for the 19^th Amendment, and another 50 years to get the Civil Rights Act of 1964, including Title VII enshrined in law. Now 55 years after that landmark legislation, the Supreme Court will hear Bostock v. Clayton County, et al, to evaluate whether sexual orientation and gender identity are included in Title VII’s prohibition of discrimination on the basis of sex. It’s not enough to create an inclusive definition and hope that people will abide by it—there is plenty of evidence that it doesn’t work that way.

The League of Women Voters recognizes that fact and it’s codified in our positions: the word “enforce” shows up 44  times in Impact on Issues 2018-2020. The Equality of Opportunity position says not just that the League “believes that the federal government shares with other levels of government the responsibility to provide equality of opportunity for education, employment, and housing for all persons in the United States regardless of their race, color, gender, religion, national origin, age, sexual orientation, or disability,” but also that the League “supports federal efforts to prevent and/or remove discrimination in education, employment, and housing”. From our nation’s history to the current lived experiences of people within marginalized communities to peer-reviewed academic studies, we know that enforcement matters when it comes to living up to our ideals.

This July, we joined 57 other civil rights organizations led by The Lawyers’ Committee on an amicus brief in support of the employee plaintiffs in Bostock v. Clayton County, et al, stating that we believe that the definition of sex within Title VII includes sexual orientation and gender identity, and that “the diversity and vitality of American workplaces, and in turn the American economy, are dependent upon Title VII’s continued application to provide robust protections against discrimination”. The connection between diversity and the American economy is demonstrably true: studies have shown that companies with greater diversity have better financial outcomes. In multiple academic studies diverse teams recall facts more accurately, process them more effectively, and are more willing to try new options. Diverse teams and organizations are necessary not just for economic growth, but also to address challenges that will have a significant impact on the future of our nation and planet. If we’re going to mitigate climate change, get to Mars, or address income inequality, we need everyone to be welcomed to work on the solution, encouraged to bring their whole lived experience with them, and protected when they do so.

In an ideal world, my mother is right: race, color, religion, national origin, and sex, including sexual orientation and gender identity, do not matter. They do not tell us if someone is great at sales, empathetic to clients, or can think on their feet in high-pressure situations. In this world, where we know that these do matter when it comes to the guarantee of equal employment opportunities, we stand with Gerald Bostock, Aimee Stephens, Daniel Zarda, and with the larger LGBTQIA+ community when we say that sex, including sexual orientation and gender identity, should not be a barrier to employment; that employees should be able to fully participate at work, without fear of repercussions due to their sex, including sexual orientation and gender identity; and that the government is responsible for ensuring that employers abide by Title VII of the Civil Rights Act with regards to sex, including sexual orientation and gender identity.