Op-Ed: A chance to progress
The Supreme Court has a chance to reshape anti-discrimination law for the better
Brandt Jager / Op-Ed Contributor / The USD Vista
On Tuesday, Oct. 8, the Supreme Court sat down to discuss a multitude of issues, including gun rights and abortion regulation. The focus, however, was on whether or not an employer should be able to fire an employee for being LGBTQ+. According to CBS News, the primary question had to do with whether or not federal law specifically protects LGBTQ+ individuals from employment discrimination.
My initial assumption was that there was no rational reason as to why someone should be fired because of their gender or sexual orientation, and that doing so was a clear violation of equal opportunity employment laws. Yet as I probed deeper, I was disturbed to find that the law, unfortunately, is in no way that clear cut.
The U.S. Equal Employment Opportunity Commission (EEOC) states that “sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person’s sex.” With all the definitions surrounding gender and sex being thrown around today, that law sounds pretty vague.
In this case, the debate then becomes centered upon whether the word “sex,” includes all of the LGBTQ+ community. Unfortunately, law tends to reveal how unnecessarily complex these kinds of debates can be. Oftentimes, how we view a single word can radically change the definition or application of a law, and so it is necessary to approach this case very technically.
It should also be noted that this is not the first time a law’s definition would be forced to be viewed from a shifted perspective. A perfect example of this is how the phrase “All men are created equal,” only began to be applied to African Americans after the victories of the 1960s civil rights movement. Jim Crow laws were mandated and enforced until 1965.
This is where Title VII of the Civil Rights Act of 1964 becomes extremely important. This title specifically refers to what can legally be defined as workplace discrimination, and will therefore likely become the center of conversation in the Supreme Court hearings. Section 703 of Title VII states that “It shall be unlawful employment practice for an employer to limit, segregate, or classify his employees or applicants for employment in any way which would deprive … any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
Once again, we are reduced to the nitty gritty, to picking apart the meaning of sex as written in the law. Technically speaking, as written, Section 703 would protect members of the transgender community because it explicitly refers to sex, but doesn’t specifically talk about sexual orientation. This is where we run into some confusing problems. It is absurd to think of a law that prohibits you from firing someone for being trans, but allows you to fire them for being gay. What if, for example, an individual is gay and trans and gets fired from their job? As written, Title VII creates this weird grey area where the law gets pretty hazy because sexual orientation was simply not discussed like it is today at the time it was written.
I believe, as Supreme Court Justice Sonia Sotomayor says, “The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances. Our society would be straitjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial, and political conditions.”
The EEOC did not have any laws or regulations surrounding sexual harassment in the workplace until the 1980s. The reality is that our laws are not static: they can adapt and simply making the definition of “sex” include sexual orientation in Section 703 would not be that radical of a move.
I do not believe somebody’s personal opinion surrounding sexual orientation, whether for religious reasons or others, should permit the blanket discrimination of an entire group of people, potentially damaging their opportunities to seek employment in the future. This runs contrary to the values we hold as a nation, claiming to support liberty, progress, and equality.
The LGBTQ+ community has always existed, but it was not until the explosion of Christianity that the subject became taboo. The Yale University Press states in an article titled “Bisexuality in the Ancient World,” “bisexuality was intrinsic to the cultures of the ancient world. In both Greece and Rome, sexual relationships between men were acknowledged, tolerated, and widely celebrated in literature and art.” Let us just accept that an era of time has dawned where we should put an end to legally-sanctioned discrimination based on sexual orientation and gender. Contemporary Americans should focus on trying to understand and accept each other as equals, and focus on using our resources for positive change instead of channeling them into the disdain and divisiveness that impede our progress and keeps us in the shadows of fearing the other.
When our society still struggles with accepting basic human rights issues in our own nation, when our society is not wanting to accept change, it displays a deeply saddening situation. The so-called “issues” of gender equality, sexual equality, and marriage equality should no longer be issues. It takes focus away from more imperative challenges that have significant impact on the lives of every living person on Earth — issues including the environmental crisis, political divisiveness, and developing nations struggling with famine and poverty. It’s time to use our influence to lift up the people of the world.