The United States Supreme Court in October heard oral arguments in three cases concerning employment discrimination against gay or transgender workers. In one, a county employee in Georgia was fired after joining a gay recreational softball league for “conduct unbecoming a county employee.” In another, a skydiving instructor was fired because when strapped to a female client for a tandem dive, he reassured her that he was “100 percent gay.” Finally, a transgender woman was fired from her job at a funeral home when she began presenting as a woman. At issue in all cases is whether Title VII of the Civil Rights Act of 1964 guarantees workplace protection against discrimination based on sexual orientation and gender identity, a particularly important issue in the 29 states that currently do not offer their own protections. The court will issue its decision in 2020.
Unlike earlier cases decided in favor of LGBTQ people that were grounded in constitutional law, these cases address statutory interpretation. The Trump administration contends that discrimination on the basis of sex in the 1964 law simply meant bias against women or men as defined by biology. A lawyer for one of the plaintiffs, however, argued that sexual orientation is indeed a sex-based classification, as it cannot be defined without reference to sex. That is, firing a man because of his attraction to other men relies on the employee’s status as a man. If he were a woman attracted to men, he would not have been fired. Therefore, he has suffered discrimination on the basis of sex. Similarly, the trans woman would not have been fired if she had continued to present as a man. She was fired because she presented as a member of the sex congruent with her gender identity, and therefore on the basis of sex.
Some argue that this is a novel interpretation. It is not novel, however. One line of argument in the ultimately successful quest for marriage equality was identical. If James wanted to marry John, historically he was not allowed to do so. If Jane wanted to marry John, no problem existed. Therefore, James was barred from marrying John, and thus suffered discrimination, because of his sex. Justice Elena Kagan offered a simple test: “Would the same thing have happened to you if you were [or presented as] a different sex?” If not, a violation of Title VII has occurred.
Justice Samuel Alito suggested that Congress should amend Title VII if it wishes to augment its 1964 understanding of what is meant by sex. The public would not accept such a ruling from the Supreme Court, he argued, which would in fact resemble a legislative body if it changed the accepted meaning of sex. Although the court must often walk a fine line here, it often interprets laws in ways different from how they were understood when passed. More important, people’s livelihoods are at stake in these cases. They—and others—cannot wait for however long it might take Congress to make changes, if ever. Earning a living should not be affected by this kind of hostility. As a Church and State editorial states, human “rights cannot be yanked away, ignored or put into abeyance because members of one faction don’t want members of another faction to have them.”
Emily Gill is Caterpillar Professor of Political Science Emerita, Bradley University.