Tomorrow, October 8th, the Supreme Court of the United States will hear oral arguments on three separate LGBTQ+ workplace discrimination cases. The issue before the Court is whether employers can legally discriminate against LGBTQ+ employees under federal law. The court’s decision could have sweeping implications for the LGBTQ+ community or anyone that does not subscribe to traditional and outdated definitions of gender and gender expression. Whichever way the court goes, tomorrow is set to be one of the biggest days in LGBTQ+ history and it’s important to know the facts:
The Current Status of LGBTQ+ Legal Protections
While half of the nation’s LGBTQ+ community is protected from workplace discrimination by state and local laws, no such provisions exist in the federal statute protecting against discrimination in employment. Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on “sex” but only some federal courts have found that to include sexual orientation and gender identity or expression. Not surprisingly, the Trump administration is pushing for a narrow interpretation of sex—meaning a traditional binary, birth-assigned definition and one that would specifically allow employers to discriminate against workers based on sexual orientation or gender identity. This is why the issue is now before the Supreme Court.
The Cases Being Heard
SCOTUS is hearing arguments on three separate cases:
In Zarda v. Altitude Express a skydiving instructor was fired for being gay. The Second Circuit ruled that Title VII protected Mr. Zarda against this discrimination but the employer and federal government are challenging this decision.
In Bostock v. Clayton County a municipal worker experienced anti-gay discrimination while working in a city government. The 11th Circuit affirmed the lower federal court’s dismissal of Mr. Bostock’s case on the basis that Title VII did not cover LGBTQ + discrimination.
Both Zarda and Bostock have been consolidated into one case for SCOTUS to determine whether Title VII prohibits discrimination in the workplace based on sexual orientation.
The Far-Reaching Implications
Regardless of the Court’s decisions, discrimination against LGBTQ+ workers will not just stop. Precedents will be set that will have much wider implications, including for women and how we interpret and apply notions of gender stereotyping and expression. For example, the Trump administration submitted a brief not only urging the Supreme Court to define “sex” under Title VII using the narrow binary, birth-assigned interpretation, but it also argued that employers can insist that male and female workers dress in a way that aligns with archaic stereotypical definitions of gender. If the Trump administration gets it way, it would be legally permissible, for example, for employers to force female employees to wear dresses as long as they prohibit male employees from doing so (see: Vogue).
On October 8th, the Court will be given an important and historical opportunity to combat discrimination on the basis of sexual orientation and gender identity; bias which serves no purpose related to workplace goals or production, but rather fosters a divisive and hateful society. It is truly inconceivable that a country that legally permits same sex marriage, would allow this same union to be the basis for losing one’s employment. A decision that rules that sexual orientation and/or gender identity is not covered by Title VII will send a dangerous message to employers that they are free to discriminate against LGBTQ+ employees with no consequence. Workplaces could become even more hostile and truly unsafe for many workers and the economic security and stability of families could be threatened.
What kind of world do you want to live in?
GELC stands with our LGBTQ+ employees and the entire LGBTQ+ community that is holding its collective breath this week. We vow to continue advocating for the safety and prosperity of LGBTQ+ workers. Lives depend on it.
If you’re in the D.C. area or want to take a bus from NYC that is being organized by Housing Works, there is a protest scheduled to take place on the steps of the Supreme Court on October 8th. Learn more and sign-up here.
Keep an eye out for updates on the cases as the decisions come down, and make sure to follow us on social media for real-time updates:
In Solidarity Against Discrimination,
The GELC Team
*Images at top created by Queer Liberation March