How the Supreme Court’s definition of ‘sex’ could impact LGBTQ employee rights

Elise Solé
On October 8, 2019, the Supreme Court heard a series of cases to determine whether or not gay and transgender people should be protected under Title VII of the Civil Rights Act of 1964. (Photo: Tasos Katopodis/Getty Images)
On October 8, 2019, the Supreme Court heard a series of cases to determine whether or not gay and transgender people should be protected under Title VII of the Civil Rights Act of 1964. (Photo: Tasos Katopodis/Getty Images)

On Tuesday, the Supreme Court heard a series of cases on whether or not employers have the legal right to fire gay or transgender people, weighing a federal law that prevents discrimination on the basis of sex.

Title VII of the Civil Rights Act of 1964 prohibits companies from firing people based on their race, color, sex, religion, or nationality, according to the U.S. Equal Employment Opportunity Commission. But the interpretation of “sex” is on the table, with one side arguing that gender identity and sexual orientation are covered under the definition, while the Trump administration disagrees.

In one case, Donald Zarda, a skydiving instructor in New York, who died in 2014 (he is represented by his estate), was fired by his employer after disclosing his sexual orientation to a female student. According to legal papers, Zarda often told female students he was gay to make the experience of being strapped to a man less awkward. But the student’s boyfriend complained to the company and Zarda was fired because he had “failed to provide an enjoyable experience for a customer.”

According to the Wall Street Journal, Zarda’s employer claimed he “inappropriately touched her and disclosed his sexual orientation to excuse his behavior.” Zarda sued his company for violating Title VII, although he died before the court ruled in his favor.

The second case involves a man named Gerald Bostock, a child welfare services coordinator in Georgia who alleged he was fired from his job for joining a gay softball team. His employer fired him in June 2013, claiming he mismanaged public funds (which Bostock denied in an interview with the Advocate). Although Bostock sued Clayton County on the same grounds as Zarda, his case was dismissed on the basis that sexual orientation isn’t covered under Title VII.

The third involves Aimee Stephens, who was fired from a Michigan funeral home in 2013 after revealing she was transgender in a letter to her colleagues. “What I must tell you is very difficult for me and is taking all the courage I can muster,” Stephens wrote, according to the New York Times. “I have felt imprisoned in a body that does not match my mind, and this has caused me great despair and loneliness.”

The Times reports that when asked why Stephens was fired, her employer answered, “Well, because he was no longer going to represent himself as a man. He wanted to dress as a woman.” Stephens won her case, reported the Times, with the court ruling, “It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex...”

According to CNN, on Tuesday, conservatives such as Justice Neil Gorsuch and Justice Samuel Alito indicated that the issue was more appropriate for Congress. And Solicitor General Noel J. Francisco, who represented the Trump administration argued, “The ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation,” reported the Washington Post.

However, Pamela S. Karlan, a Stanford law professor and co-director of the Supreme Court Litigation Clinic, argued, "in 1964 you wouldn't find a single dictionary that defined the term 'sexual harassment' and yet the Supreme Court has held that Title VII [of the 1964 Civil Rights Act] prohibits sexual harassment of women,” according to NPR. (Karlan was not immediately available for comment when reached by Yahoo Lifestyle).

A decision regarding the law is expected in 2020. On Monday, actress and LGBTQ advocate Laverne Cox told ABC News that Tuesday’s hearing was “probably the most consequential case for LBGTQ+ civil rights that the Supreme Court will hear in my lifetime.”

According to Charlotte Clymer, press secretary for the Human Rights Campaign (HRC), LGBTQ employees often have to be cautious — 46 percent say they’re closeted at work, 20 percent have been told or had colleagues suggest they should dress more feminine or masculine, 53 percent say they hear jokes about sexual orientation and gender identity at work “at least once in a while,” and 31 percent feel unhappy or depressed at work, as found in the HRC 2018 A Workplace Divided report.

“LGBTQ people learn to pivot water cooler conversations at work,” Clymer tells Yahoo Lifestyle. “When asked about family life, one’s answer may include parents or siblings, not a partner.” These scenarios may not directly impact job performance, but career advancement is often built on personal connections.

These employees may also self-impose higher standards than straight, cis employees so employers won’t easily justify termination. And Omar Gonzalez-Pagan, a spokesperson from Lambda Legal, a non-profit that advocates for the rights of LGBTQ people and those living with HIV, tells Yahoo Lifestyle, “Much of the healthcare in this country is provided by employers, so the ruling affects whether or not people can get the appropriate medical care.”

By 2016, only 20 states, along with Washington, D.C., have banned discrimination based on gender identity and sexual orientation in employment, housing, and public accommodations, per the American Civil Liberties Union (ACLU), which is why bills like the Equality Act (which the House of Representatives passed in May) matter. The Equality Act would "prohibit discrimination on the basis of sex, gender identity, and sexual orientation” in almost every area of public life (healthcare, education, housing, federal programs, and more), although it lacks support from the White House.

As an official told NBC News, “The Trump administration absolutely opposes discrimination of any kind and supports the equal treatment of all. However, this bill in its current form is filled with poison pills that threaten to undermine parental and conscience rights.”

“When same-sex marriage was legalized in 2015, the vast majority of America conflated that with LGBTQ acceptance,” says Clymer, citing a June Reuters/Ipsos poll which found that nearly half of Americans had a misconception that LGBTQ people were protected on the basis of their sexual orientation and gender identity.

But current laws affect the ability to earn a living and thrive in our county, says Clymer, adding, “It’s an attack on the American dream for LGBTQ people.”

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