You would think that in 2019, we'd have dealt with a lot of the thornier issues of equal rights. Well, think again. A major upcoming court case is tackling LGBTQ+ discrimination, and it could have some major effects. The Supreme Court's LGBTQ+ rights and Title VII case could make history in a huge way by making sure gay and trans employees are protected from workplace discrimination. It's more than a big deal, so here's what to know.
In 1964, the Supreme Court passed the Civil Rights Act, also known as Title VII, which outlawed discrimination nationally based on race, religion, and sex. However, while Title VII prohibits workplace discrimination based on sex, religion, or race, it does not mention sexual orientation or transgender status being protected. For years, the question of whether "sex" includes sexual orientation has been left in limbo. But in the upcoming case, attorneys will state their reasons why "sex" should or should not include gender identity or sexual orientation. The Supreme Court will rule whether the Civil Rights Act applies to LGBTQ+ workers, and will focus on three cases that involve individuals who were fired from their jobs based on their sexual orientation and gender identity.
Two of the cases, Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda, deal with employees who were allegedly fired from their jobs for being gay. The third case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, involves funeral home employee Aimee Stephens, who was allegedly fired after revealing to her boss that she was transgender. These cases have one common denominator — if sexual orientation and gender identity were explicitly covered under Title VII, being fired for being gay or trans would be illegal.
When you lose a job because of who you are, some people may never recover from that.
"Title VII prohibits discrimination in the workplace based on sex, but sex is not defined, and almost from the earliest years of the Civil Rights Act LGBTQ people have been bringing claims of sex-based discrimination," Ria Tabacco Mar, senior staff attorney at the American Civil Liberties Union (ACLU), tells Elite Daily in an interview. The ACLU serves as Stephens' legal counsel, and will represent her case in the Supreme Court. "I think the Aimee Stephens case is a great example. That should be a clear cut case of sex discrimination."
Jim Campbell, senior counsel for the Alliance Defending Freedom, which is defending Harris Funeral Homes in the case, says that in the organization's view including gender identity under Title VII "undermines both fairness and freedom." He tells Elite Daily by email, "Congress passed Title VII in 1964 to prohibit sex discrimination. Neither government agencies nor the courts have authority to rewrite federal law by replacing 'sex' with 'gender identity' — a change with widespread consequences for everyone." He cited concerns about equal opportunities and "bodily privacy rights."
For LGBTQ+ individuals, workplace discrimination is still a huge problem. According to a May 2017 report from public policy nonprofit Center For American Progress, one in four LGBTQ people reported experiencing workplace discrimination in 2016, including being denied promotions, being ostracized from coworkers, and getting fired from their jobs. As many as 28 percent of LGBTQ+ workers reported they were denied promotions based on their sexual orientation, and 27 percent of transgender employees reported they were not hired, were denied promotions, or were even fired in 2016 alone.
LGBTQ+ workers have taken drastic measures in order to avoid workplace discrimination. According to a June 2018 report from the Human Rights Campaign (HRC), 46 percent of LGBTQ workers say that they are closeted at work. Mar says this can have a devastating impact on LGBTQ+ individuals.
"When you lose a job because of who you are, some people may never recover from that," Mar says. "That loss of confidence can be really devastating. When any of us aren't able to be our true selves in the workplace, it takes a tremendous amount of emotional energy to remain positive. It means that people aren't bringing their full and best selves to the workplace."
LGBTQ+ discrimination is clearly still a problem, so the Supreme Court's decision could break new ground or leave serious consequences on this major issue.
"This decision is critical because the Supreme Court is being asked to say that it's perfectly legal to fire someone for being LGBTQ — that's huge," Mar says. "That would send a devastating message to LGBTQ people around the country, and it would embolden private discrimination and LGBTQ people would be carved out of protection that everyone else takes for granted."
On the other side, if the Supreme Court rules that LGBTQ people are protected under the Civil Rights Act, it could change history by making it illegal to fire, refuse to hire, or deny promotions to workers simply based on sexual orientation or gender identity.
"We've seen the impact it can have, [take] when the Supreme Court recognized marriage equality in 2015 " Mar says. "All we're asking for is the same freedom that everyone else has to go about our day to day lives free of discrimination."
While this Supreme Court case will be a huge decision for LGBTQ+ individuals, it could have been avoided. In 2015, the Equal Employment Opportunity Commission (EEOC) concluded that Title VII does protect LGBTQ+ individuals against workplace discrimination, a stance with which President Barack Obama agreed. However, the conclusion has since been reversed under the Trump administration.
In addition, President Donald Trump announced in July 2017 that he and his administration would not allow transgender individuals to serve in the armed forces. The announcement was met with serious controversy and criticism from the public, but on Jan. 22, the Supreme Court voted to allow the military ban with a 5-4 vote. The ban officially took effect on April 12. The White House did not previously respond to Elite Daily's request for comment on the matter.
While the future of the Supreme Court case is still unclear, Mar points out that even if the Supreme Court rules against LGBTQ+ inclusion in Title VII, all isn't lost. In March, a group of House Representatives — both Democrats and Republicans — introduced the Equality Act. The Equality Act explicitly states that LGBTQ individuals are protected from discrimination in every measure — workplace, housing, credit, public spaces, and more. The legislation would modify current civil rights laws, such as the Civil Rights Act of 1964, the Fair Housing Act, the Equal Credit Opportunity Act, the Jury Selection and Services Act, according to the HRC.
So far, the bill has yet to pass the House or Senate, but has been referred to the Senate Judiciary Committee for overview. However, Mar states that passing this legislation could possibly make an even bigger impact than the Supreme Court's decision on Title VII.
"Now is the time to make our voices heard," Mar says. "We can call our representatives, tell them now's the time to pass the Equality Act. Congress can fix this. We don't have to wait for the Supreme Court to get it wrong before Congress gets it right." Want to know how you can get involved? The United States House of Representatives has a full list of representatives right here.
The fight for LGTBQ+ rights continues, but it looks like some changes may be on the horizon very soon.