After joining a gay softball league in 2013, Gerald Bostock was fired from his job of ten years working as a Child Welfare Services Coordinator for Clayton County, Georgia. His employer claimed to have terminated Bostock due to “conduct unbecoming of employees.” Skydiving guide Donald Zarda was similarly fired in 2010 after colleagues discovered he was gay. Both men sued. Unsatisfied with the responses of the lower courts, both the social worker and the skydiver appealed to the Supreme Court. Their cases were heard together during the October term. These cases along with Harris Funeral Homes v. EEOC will help the court decide on a crucial question: Does sex discrimination, as established by Title VII of the Civil Rights Act, extend to sexual orientation and gender identity? 

The Trump administration has made their stance on the issue clear: Title VII does not protect LGBTQ+ people. Its amicus brief in favor of Bostock and Zarda’s employers asserted that so long as lesbians and male gays are treated equally, one cannot claim discrimination on the basis of sex under. It further establishes sexual orientation as “a different trait.”

Like the Trump administration, LGBTQ+ rights activists would never equate sex with sexuality, but distinguishing between these two identity factors in no way undermines Title VII’s protection of the LGBTQ+ community. As the petitioners’ lawyer Pamela Karlan argues, if a man is fired for dating a man, but a woman dating a man is not, “that discrimination is because of sex.” The court has already established that terminating an employee for failing to conform to traditional notions of how a man should behave is illegal under Title VII. As Karlan puts it, “when you tell two employees who come in, both of whom tell you they married their partner Bill last weekend, when you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that's discrimination because of sex.” 

Another popular argument from the right about which Karlan was rigorously questioned is that Title VII was not intended to cover sexual orientation discrimination when it was written in 1964. This stubbornly originalist interpretation, as Karlan deftly points out, would mean that Title VII does not extend to workplace sexual harassment, thus contradicting the court’s many precedents to the contrary. In fact, discrimination on the basis of sex only accidentally made its way into the Civil Rights Act in the first place. It came as a last minute addition by Rep. Howard Smith, who opposed the legislation, and figured including sex was a surefire way to defeat it in congress.

 In the third October Title VII case, the ACLU represented Aimee Stephens, who was fired from her job at Harris Funeral Homes after transitioning. Though politically challenging to make a case for legal protections for transgender people, Stephens’ claim under Title VII is far more clear cut. As her lawyer David Cole argued, “Harris Homes fired her for identifying as a woman only because she was assigned a male sex at birth. In doing so, it fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives.” Put simply, Stephens was fired because she did not act the way her employer believed a person with a penis should. Cole astutely refuted the Trump administration’s wrongheaded assertion that treating trans women equally with trans men or lesbians equally with gays precludes a sex discrimination claim. He explained, “That Harris Homes would fire both transgender men for being insufficiently feminine and transgender women for being insufficiently masculine is, as the government concedes, two acts of sex discrimination, not a defense.”

Though jarring to think that Title VII may no longer protect the LGBTQ+ community, it is unsurprising. How can we expect a clause thrown in last-minute to undermine the passage of crucial Civil Rights legislation to protect a community that has been little more than a footnote in our history textbooks? I am cautiously optimistic given how receptive Trump-appointee Justice Neil Gorsuch was to the plaintiffs’ arguments, though I do not want to get my hopes up. Although I am fearful about the court’s impending decision, I cannot help but smile when I think of Rep. Howard Smith and how angry he would be that the clause he intended as a prank is now being used by Bostock, Zarda, and Stephens as they fight for fundamental rights. 

Sources

1. Cornell Law School. “Bostock, Zarda.” Oyez, Justia Institute, 8 Oct. 2019, www.oyez.org/cases/2019/17-1618'.

2. Cornell Law School. “Stephens.” Oyez, Justia Institute, 8 Oct. 2019, www.oyez.org/cases/2019/18-107.

3. Garza, Alejandro de la. “Trump Administration Approves Anti-Gay Discrimination.” Time, Time, 25 Aug. 2019, time.com/5660956/trump-administration-anti-gay-brief-title-vii/.

4. “Reflections on Sex Equality Under Law.” Women's Lives, Men's Laws, by Catharine A. MacKinnon, Belknap, 2007, pp. 117–117.

5. Totenberg, Nina. “Showdown Over LGBTQ Employment Rights Hits Supreme Court.” NPR, NPR, 8 Oct. 2019, www.npr.org/2019/10/08/766386729/showdown-over-lgbtq-employment-rights-hits-supreme-court.