SCOTUS on LGBTQ+

Althea Ulin / Asst. News Editor / The USD Vista

Two landmark cases were argued in front of the Supreme Court of the United States (SCOTUS) on Oct. 8. Standing before the nine justices, members of the LGBTQ+ community demanded that their equal employment rights be federally protected from workplace discrimination. Twenty-one states have anti-discrimination laws protecting these rights, plus Washington D.C., Guam, and Puerto Rico, but outside of those, the LGBTQ+ community fears workplace harassment and inequality. 

The joint cases of Bostock v. Clayton County and Altitude Express Inc. v. Zarda will decide whether the Civil Rights Act of 1964 protects gay workers from being fired based on their sexuality, and the Harris Funeral Homes v. Equal Employment Opportunity Commission (EEOC) will decide if that same legislation protects transgender workers from workplace discrimination based on their gender identity.

The Diverse Sexuality and Gender Alliance (DSGA), an LGBTQ+ advocacy group on the University of San Diego’s campus, formerly known as PRIDE, will be hosting an information session and discussion on Oct. 16 regarding the recent hearings. Paulina Sierra, president of the DSGA,  explained her perspective of the cases, and how they relate to the Civil Rights Act of 1964. 

“If you look at what discrimination against a gay person is, it is ultimately that the person failed to align with the stereotypes of their sex, which assumes heterosexuality,” Sierra said in regards to her stance on the positions of Bostock and Zarda. “It is absolutely an issue of sex, because they were fired not because they were perceived as being attracted to men, but because they were men who are attracted to men.” 

Sierra noted the circumstance of the law to protect workers based on their sex assigned at birth, rather than their sexual orientation or gender identity; thereby necessitating that the cases be argued as discrimination based on sex to fall under the protection of the Civil Rights Act of 1964. She added that these cases hold gravity over members of the LGBTQ+ community that are coming into their professional careers, and they are especially important for college students looking into the security of their future income and ability to work. 

Sierra explained the importance of having this conversation on campus to help LGBTQ+ students and community members process the threats and opportunities these cases could pose. Sierra mentioned a lack of optimism as history has not frequently ruled in favor of LGBTQ+ people. 

“It is traumatic for LGBTQ+ individuals to see our rights up for debates, and oftentimes we are forced to hear about these issues in environments that encourage divergent opinions,” Sierra said. “While this isn’t inherently a bad concept, you have to remember that this is a debate on whether or not we as LGBTQ+ individuals deserve the right to live freely and to exist without fear. I believe it is imperative to provide those that will be affected by this with information in a space that doesn’t erode at their very being.”

In the case’s appearance before the Court, attorney Pamela Karlan represented Gerald Bostock while arguing on the dual behalf of Bostock and Matthew Zarda. 

“When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII,” Karlan said. “The employer has discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men.” 

Meaning, if there is an equally-qualified man and an equally-qualified woman, and the employer fired the man because he was attracted to other men, and the employer would not fire the woman because she was attracted to men, that is discrimination on the basis of sex, according to Karlan, as protected in the Civil Rights Act of 1964.

Karlan’s points were countered with thoughts from the defense and questions from the bench surrounding the idea that this was discrimination on the basis of sexual orientation which is not explicitly illegal textually in any federal legislation. Justice Samuel Alito frequented this thought.

“Now, if you add in two other cases, that a man who is attracted to women, not fired, a woman who’s attracted to women, is fired, then you have a much better idea the basis for the discrimination,” Alito said. “And it’s sexual orientation. It’s not sex.”

Other justices were quick to seemingly defend Karlan’s points with Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Neil Gorsuch intensely interrogating the defense’s rebuttal to Karlan’s points. Gorsuch went so far as to have Jeffrey Harris, the defense lawyer, admit that there was a causal relationship between sex and the firing of Bostock. 

Moving onto the next case, Harris Funeral Homes v. EEOC, Aimee Stephens claimed workplace discrimination on the basis that she had been fired because of her sex as a transgender woman. Harris Homes fired her on the basis that she did not fit in accordance with the male dress code as a male. David Cole, representing Stephens, laid out a simple three-point argument as to why this was a case of unequal workplace opportunity on the basis of sex. 

“First, in firing her for failing to conform to its owner’s explicitly stated stereotypes about how men and women should behave,” Cole said. “Second, 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 … Third, Harris Homes fired her for, in its owner’s words, changing her sex. That’s discrimination in the same way that firing someone for changing their religion would be religious discrimination.” 

Cole claimed that had Stephens been assigned female sex at birth, she would not have been fired, but because she was assigned male at birth, she was fired for expressing her gender as she saw fit, and that her employers had preconceived notions of what those of a specific sex were supposed to act like and fired her because she did not fit that vision. Cole described this as, “It is saying, I object to you because you fail to conform to this stereotype: The stereotype that if you are assigned a male sex at birth, you must live and identify for your entire life as a man. That is a true generalization for most of us, but it is not true for 1.5 million transgender Americans.” 

Harris Homes had admitted in court of the Second Circuit that had Stephens showed up to work as a woman in proper dress code, she would have been fired because it did not fit her sex. The federal court has deemed discrimination against transgender people sex discrimination for the past two decades proving judicial precedence. Additionally, Cole pointed to the Price Waterhouse case which stated that Ann Hopkins could not be fired for not being feminine enough, and for that, his client could not be fired for not being masculine enough either.

 The main argument from John Bursch, the representative for Harris Homes, was that the Supreme Court did not have the right to interpret the law like this on behalf of the American people as it would disrupt the democratic process by which laws of this nature allegedly should be decided. The entire argument of the Harris Homes v. EEOC case was founded in precident and role of the Court to make a decision like the one that will decide whether or not, on a federal level, transgender Americans can be protected from workplace discrimination.

The two decisions could come out as early as the first quarter of 2020, but in the meantime the LGBTQ+ community, and the rest of America, waits on whether they can be fired at will by employers who disagree with same-sex love or gender identity. These could be landmark decisions for civil rights in protecting the rights of queer people to live as Americans divulging their ability to succeed and participate in the workforce regardless of their sexual identity.