As demonstrations against racial discrimination spread across the country, a profound victory over another kind of discrimination struck like a thunderbolt on Monday.
The U.S. Supreme Court, in a 6-3 opinion written by Trump appointee Neil Gorsuch, ruled that Title VII of the Civil Right Act of 1964 prohibits employers from firing workers for being gay or transgender.
The decision was hailed by civil rights activists and the LGBTQ community as a giant leap forward in workplace protections for gay and trans people.
That it is. Hawaii already broadly prohibits discrimination based on sexual orientation and gender identity. But in more than half the states, it was legal to fire someone because they were gay, bisexual or transgender — until Monday. The court’s ruling applies nationwide, from sea to shining sea.
Bostock v. Clayton County consolidated three cases: Gerald Bostock, who lost his job as a child welfare advocate in Clayton County, Ga., after he joined a gay recreational softball league; Donald Zarda, a skydiving instructor in New York, fired after he mentioned he was gay; and Aimee Stephens, a funeral home employee who told her company she would change her gender from male to female, and was fired as a result. Bostock was the only one of the three who lived to see Monday’s historic ruling.
“I truly wish they were here with me,” Bostock told The Washington Post.
It takes no leap of imagination to recognize the unfairness of it all. The court noted that Bostock, for one, was an exemplary employee, and the county won national awards for its work under his leadership.
It also seems clear that the arc of gay/transgender history is bending toward justice. In previous ruling dating back to 2003, the court struck down laws that made gay sex a crime and denied benefits to married same-sex couples. In 2015, the Court said that the right to same-sex marriage was guaranteed by the U.S. Constitution.
The ruling did not rely on the legislative history of Title VII, or the likelihood that few at the time would have expected the law to apply to gay and transgender rights.
Rather, the court applied the “ordinary public meaning” of the landmark law’s language, which makes it “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.”
Gorsuch wrote: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
So it’s a big win for LGBTQ rights that could have an impact on millions of workers nationwide. Still, the debate continues.
The U.S. House of Representatives has tried, so far without success, to expand discrimination protections beyond the workplace to cover public accommodations, education, federal funding, employment, housing, credit and the jury system. Bill 5 also would amend Title VII to include specifically “sexual orientation” and “gender identity.” The bill remains stalled in the U.S. Senate. Whether an LGBTQ employee can be fired on religious grounds remains an undecided issue.
Perhaps other jurisdictions can learn something from Hawaii, where sexual orientation is included in state anti-discrimination laws, which cover not only employment, but public accommodations, real estate transactions and education.
The sky has not fallen. Safeguarding the civil rights of every citizen simply is the right thing to do.