Issue:
The protection of sexual
orientation and gender identity has been a hot topic the last two years. A lot
of the focus was for individuals who identify as Transgender and the use of
public restrooms. The focus has shifted recently and this last week the Supreme
Court has been “divided in deciding if Title VII of the Civil rights act from
1964, 42 U.S.C. § 2000e-2. (which
makes it illegal for employers to discriminate because of a person’s sex) also
covers sexual orientation and transgender status”. [1]
Case:
Bostock
v. Clayton County, Georgia is the case being argued in the Supreme Court. Oral
arguments were scheduled to start October 8, 2019 in The United States Supreme
Court. Gerald Bostock was the child welfare services coordinator for the
Juvenile Court of Clayton County, Georgia. He was in a gay recreational
softball league. It is alleged that in June 2013 “Bostock’s participation in
the gay softball league and his sexual orientation were openly criticized by
someone with significant influence in the Clayton County court system.”[5] Bostock’s
employment was terminated for the reason of “conduct unbecoming of a county
employee.” Bostock denies he engaged in misconduct and alleged he was terminated
for his sexual orientation. Bostock filed charges against the county alleging
his termination violated Title VII of the Civil Rights act of 1964. The county
moved to dismiss the case arguing it does not violate Title VII and Bostock is
not protected from discrimination due to his sexual orientation. A federal
magistrate judge dismissed the case and the U.S. District Court for the Northern
District of Georgia affirmed that decision holding “the Eleventh Circuit has
foreclosed the possibility of a Title VII action alleging discrimination on the
basis of sexual orientation as a form of sex discrimination.” [5] On appeal the
11th Circuit affirmed the U.S. district court’s judgment. [4]
Divided Opinions:
The
last two years the Trump administration “has argued that current federal civil
rights laws do not provide protections for employees who are fired or
discriminated against because of their LGBTQ status, and that Congress would
need to change the law to extend protections to that group.”[2] Many human
rights activist and the LGBTQ community feel that the Trump administration has
gone backwards in regards to protection and equal rights for the LGBTQ
community and the rhetoric of the Trump administration has increased hate
crimes and violence within their communities. These same groups feel it is up
to the Democrats to step up and undo what the Trump administration has done. It
appears the Supreme Court has been divided in their arguments this week. Conservative
Justice Samuel Alito said, “People will say that
whether Title VII should prohibit discrimination on the basis of sexual
orientation is a big policy issue, and it is a different policy issue from the one that Congress thought it was addressing in
1964.”[3] Justice Ruth Bader Ginsburg stated “that Congress wasn't
thinking about sexual harassment then, either, but the courts later ruled that
it is also prohibited by the civil rights law.” [3] And Justice Sonia
Sotomayor who is considered another court liberal asked “At what point does a
court continue to allow invidious discrimination? We can't deny that
homosexuals are being fired just for who they are." [3] With the
Supreme Court so divided the deciding vote may lay in the hands of Justice Neil
Gorsuch who was appointed by Trump. Gorsuch appears to be “receptive to the
argument that no matter what Congress had in mind in 1964, the words of the law
would apply to sexual orientation, if not transgender status as well.”
[3]
Questions
1. Should
sexual orientation and gender identity fall under the protected class of a
person’s sex under Title VII of the 1964 Civil Rights Act?
2. Or
should this be something that is handled at the State levels? If you feel it
should be handled at the State levels, what is your reasoning for this? (you
may also be undecided and explain why)
Sources:
I think being fired for a sexual orientation is ridiculous and close minded of any person or organization. Just to be devils advocate, do you agree this also gives the right to fire for being heterosexual? Should sexual orientation even matter in terms of employment? Sexual orientation should have zero to do with job performance, job retention or job termination. It is merely a personal aspect of someone's life that has no relevance in the workplace. Is this truly a widespread issue or is it a media frenzy?
ReplyDeleteLove you Cain, but if it wasn't for the media some change may never take place. The media helps bring light to important issues such as this. The media is not the enemy (not that you are saying that, but it's portrayed that way these days). Additionally, this is one of many examples a person has been fired for being gay or transgender. I'm sure your aware of that, but my point is it probably happens more than we even know about, but some people don't fight back. The media can't cover what it is not made aware of.
DeleteThis is not a media frenzy by any means. To be personal here, but my spouse can't share at her place of work that she is married to a woman, and multiple times her boss has made horrible comments against people who are gay, not realizing that her employee is. The comments have led us to believe that my spouse would probably be let go, not due to performance issues, but because of her sexual orientation. So she refrains from saying the name of the person she is married too, and doesn't correct her boss if they ask about her 'husband' to protect her job. It's very much an issue particularly in small companies where employees must hide the fact that they are gay for undue firings. Even though Utah has more rights to protect gay people than other states it's still an issue. I agree Cain that it has nothing to do with job performance but it still is an unfortunate situation, and happens more than you might think. On this one I'm happy for all media attention that is brought up on this topic!
DeleteJess..this is why this is so important to bring to light. I had no idea of your personal situation like most people. A lot of my friends who deal with this don't feel they have a "safe place" anywhere. And I am sure it is obvious but I can answer the question for myself. Yes, this should be covered under Title VII and change needs to happen now! I interviewed someone for a paper and we are now good friends. At 60 years old Rachel finally started her transition from male to female because she retired from her job and felt she would be fired if her boss knew anything. Transgender people in particular have NO safe place within the workplace and that is why sex work becomes a safe place for them but it is illegal and taboo. It was a pleasant surprise to learn that one of the Conservative Justices that may be the deciding vote is actually leaning towards a more liberal approach.
DeleteI certainly agree that it happens more than we even understand. It is certainly not the media's fault. I am very close to this situation and have numerous very close friends, family and business partners who are extremely instrumental in the fight for equal rights. Jess, people like your spouse's boss are the problem. I was by no means diminishing the problem but it is not only a gay issue. People are wrongfully terminated for number of things on a daily basis or discriminated against. My only point is sometimes the issue at hand isn't dealt with because it becomes a media frenzy or an issue focused on one class or group instead of getting to the root of the issue and restoring humanity not gay, straight, bi, or trans.
DeleteAs we evolve as a society, our laws need to as well. We’ve seen so many companies and schools starting to make positive changes when it comes to sexual orientation and how one identifies, why not the federal and state laws too? Yes, we’ve made progress, but discrimination still exists and unfortunately may never dissolve completely. However, if we fail to update protections like those in Title VII of the Civil Rights Act, this will be an ongoing cycle of lawsuits and discrimination. While Justice Alito may be correct in saying he doesn’t think the 1964 policy issue reflects this type of policy issue, it still cannot be ignored and this is the opportunity to make change. I’m glad to see the federal government accepted to hear this case, Bostock v Clayton County along with R.G & G.R Harris Funeral Homes Inc. v Equal Employment Opportunity Commission, where a funeral home employee claims she was fired when she told her employer she identified as woman and was going to start dressing like one (1). These cases need to be heard and will continue to pop up as more and more people are deciding to be open with who they are and they shouldn’t be punished for doing so. Further, I think it should be addressed on the federal level because some states are naturally more conservative than others and that should not be a basis for discrimination to be allowed. There needs to be a general protection across the board. So my answer is yes, sexual orientation and gender identity should fall under the protected class of a persons sex under Title VII of the 1964 Civil Rights Act which prohibits employment discrimination based on race, color, religion, sex and national origin. By the justices including sexual orientation, it will clear up the question of whether or not they are a protected class and prevent further lawsuits from happening in the future and hold companies accountable if they violate such protections.
ReplyDelete1. https://constitutioncenter.org/blog/supreme-court-hears-two-major-cases-today-on-title-vii-and-discrimination
Angela, great post and great topic. I'm following the Supreme Court closely this session in regards to this, and I fully believe that 'sex' includes sexual orientation and gender identity.
ReplyDeleteAs we learn about the 14th Amendment it says that ‘nor shall any state deprive any person of life, liberty….’ [1] in which the Constitution is outlining equal protection. Which in my mind includes for gay and transgender people to have liberty, and if you look up the definition is ‘’the quality or state of being free’ [2] Then I don’t see how the current administration can argue that the current federal laws don’t include equal protection for employees who are gay or transgender since ‘liberty’ is in our Constitutional rights. Heterosexual people have protection, even if it’s just this societal idea or historical context that is provided to them that they are not discriminated against for being heterosexual. This same protection should be granted to others who are not heterosexual, even if this means it must be written in law for people to follow. It’s unfortunate that this argument has to be made if it should be explicitly written in law in order to be provided the same protections that heterosexual people have, just for it to be not okay to be discriminated against. It should be ruled by the Supreme Court as part of equal protection and determined as defined already to be protected under ‘sex’ in Title 7. As is stated in the article that Angela cited it says, ‘"When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII," Pam Karlan of Stanford Law School said, arguing on behalf of Gerald Bostock, who was fired from a county job in Georgia after he joined a gay softball team. "The employer has discriminated against the man because it treats that man worse than women who want to do the same thing. And that discrimination is because of sex."[3]
Angela, I'm glad you brought up the comment that Ruth Bader Ginsburg made that sexual harassment wasn't included at the time either, however, they ruled later it was included. It takes away this argument of what did it mean at the time it was created.
I also don’t think this should be left up to the states to decide. This is also an issue about liberty and equality for all and not something that should be left for states to decide and essentially be allowed for some states to discriminate and other states not. I also think that it brings up this issue of how you can legally ‘get married to my partner on …Sunday, and get fired for it on Monday…’ [4] To me this should be decided federally, and is already decided under Title 7 ‘on the basis of sex’. [4]
[1] https://www.law.cornell.edu/constitution/amendmentxiv
[2] https://www.merriam-webster.com/dictionary/liberty
[3] https://www.nbcnews.com/politics/supreme-court/supreme-court-appears-divided-over-lgbtq-job-discrimination-n1063886
[4] https://www.nbcnews.com/feature/nbc-out/central-figures-supreme-court-lgbtq-discrimination-cases-speak-out-n1064391?yptr=yahoo
I almost used the quote you used! I don't think people realize how much people have to hide who they are on a daily basis and it's not right. This should be covered under Title VII and states should uphold these basic equal rights of human beings. States should not be deciding this in my opinion for the same reasons you mentioned; Religious, political, and culture of many states do not believe in basic rights of human beings.
ReplyDeleteThe topic you have selected is definitely something that is at the forefront of discussions in the political realm, in businesses, and at social tables of all types and across the spectrum of all ages and among those from every “race, color, religion, sex, or national origin”.
DeleteAs such, this is a topic that is not defined by regional or state boundaries and is something that should be addressed on a national platform. It has outgrown the viability of state decisions.
However, categorically boxing in or simplifying LGBT issues as only being solved, fixed, appreciated or demonized by Democrats or Republicans, conservatives or liberals, or any other us vs them group is limiting and is an underlying fallacy to the nationwide discussion as how to best afford basic rights to all people within our country.* With that in mind, I think time and resources would be best spent if an amendment was made to Title VII of the 1964 Civil Rights Act. Augmenting or interpreting the definition of sex to go beyond biological assignment does not acutely clarify or define sexual orientation and gender identity. Both of the latter terms incorporate one’s feelings, romantic attraction and inherent sense of who they are (1) that are not accurately defined by the umbrella term sex. Because of the “shifting usage of terms … the definitions vary somewhat” (1) and because of unforeseen ramifications of understanding or using the term “sex” as it may relate to other laws or issues to also define sex as including sexual orientation and gender identity, Congress or the courts should explicitly use defined and precise terms when defining protected classes. This will continue to be a topic of intense interest.
1 - https://www.apa.org/pi/lgbt/resources/sexuality-definitions.pdf
*Voting count for original passage of Civil Rights Act of 1964 in Yea-Nay format:
Democratic Party: 153–91 (63–37%) Republican Party: 136–35 (80–20%)
Angela great post! It is interesting, provocative and relevant to our time. We understand that the Constitution was intentionally left silent by the framers on many issues. This allows the opportunity for the interpretation of the law by the many great minds that are tasked daily to derive the best possible interpretation and application of the law.
ReplyDeleteThomas Jefferson wrote in 1816, “Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.” (1)
We are living in a time where the words of Thomas Jefferson bring the topic at hand into clear focus, in my opinion. It is now time to afford the entire spectrum of LGBTQ community the protection they deserve as human beings living in the US. Not only should they be protected under Title XII of the Civil Rights Acts of 1964, 42 U.S.§2000e-2(employment). Further, the entire spectrum of the LGBTQ community must be afforded their fundamental rights enumerated by the Constitution.
As we have studied, Fundamental rights are a group of rights that have been recognized by the Supreme Court as requiring a high degree of protection from government encroachment. These rights are specifically identified in the Constitution (especially in the Bill of Rights), or have been found under Due Process. Laws encroaching on a fundamental right generally must pass strict scrutiny to be upheld as constitutional. (2) https://www.law.cornell.edu/wex/fundamental_right
Clearly, I do not believe these rights should differ from state to state but rather, fall under Federal law and soon!
(1) http://nps.gov/thje/learn/photosmultimedia/quotations.htm
(2) https://www.law.cornell.edu/wex/fundamental_right
I agree a 100% with Jess. The term “Sex” in Title VII should protect from discrimination based on gender identity and sexual orientation. Over the years the Civil Rights act has been expanded to include the elderly, pregnant women, the disabled, and to protect against workplace harassment (1). Clearly the intent of the Civil Rights act wasn’t to protect individuals against very specific kinds of discrimination, but to protect against discrimination in general. Despite the intent of the lawmakers or the verbiage of the law, such discrimination is a violation of an individual’s fundamental rights that should protected by the Constitution. Because this is a question of individual rights and freedoms, I do not think it should be handled at the State level but be a given protection for all Americans.
ReplyDeleteI am glad you posted this Angela – this is one of the most critical issues facing our country. Suicide is the 2nd leading cause of death for individuals between the age of 10 and 24, LBG youth are 5 times more likely to attempt suicide than heterosexual youth. In addition, 40% of transgender adults report reported a suicide attempt. (2) The cases before the court are critical, and the cases represent more than just protections of people’s jobs and livelihoods.
1. https://www.archives.gov/education/lessons/civil-rights-act
2. https://www.thetrevorproject.org/resources/preventing-suicide/facts-about-suicide/
I agree with Jess. This is not only covered by Title VII, but also by Amendment 14. This is not an issue that should be up to the states to decide, it is definitely a federal issue. If the laws are not interpreted by all to provide protection to ALL in these types of situations, then the federal government clearly needs to be involved to change the wording to make it clear in every state. It is unfortunate and ridiculous that this issue IS an issue. Thank you Angela for this post! I’m clearly oblivious of how big of an issue this is and I strongly agree that the word ‘sex’ in Title VII definitely should apply to sexual orientation and gender identity.
ReplyDeleteI’ll answer the second question first. States should not be deciding people’s fundamental rights. States have repeatedly shown that fundamental rights are often secondary to the religious or tribal mentality winds of the day.
ReplyDeleteSexual orientation and gender identity should unquestionably be protected classes under Title IIV. It is unfathomable to me that the court would declare marriage a fundamental right even for same-sex couples, then rule that employers (and others) can discriminate based on sexual orientation or gender identity. However, I’m not optimistic.
I find it interesting that the article you cited listed Justice Gorsuch as the potential swing vote. In reading the article, and the article it cited, I’m not hopeful that Justice Gorsuch will do the right thing.
As an article in the NY Times in June of this year pointed out, Chief Justice Roberts has been the swing vote on more than one occasion.[1] He voted to uphold the ACA;[2] He sided with the Court’s liberal-leaning justices on the census immigration question this year,[3] and Roberts is trying to restore–or at least maintain–legitimacy to the Court.[4] However, I don’t have much faith in the chief justice. Despite expressing regard for precedent, “In all 42 split-decision cases that the chief justice has presided over involving racial minorities, immigrants, workers, and abortion, he voted for conservative outcomes 100 percent of the time.”[5] Why would a case involving gender identity or sexual orientation be any different for Justice Roberts?
I feat that for gender identity and sexual orientation to be included in Title IIV, Congress is going to have to correct the deficiency in the law. The court appears to me to favor the partisan ideologues.
1. Adam Liptak, After 14 Years, Chief Justice Roberts Takes Charge, N.Y. Times, June 27, 2019, https://www.nytimes.com/2019/06/27/us/politics/chief-justice-roberts.html?searchResultPosition=10.
2. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).
3. Department of Commerce et al., v. New York et al, 139 S.Ct. 2551 (2019).
4. Adam Liptak, John Roberts, Leader of the Supreme Court’s Conservative Majority, Fights Perception That it is Partisan, N.Y. Times Dec. 23, 2018, https://www.nytimes.com/2018/12/23/us/politics/chief-justice-john-roberts-supreme-court.html.
5. Doug Mills, Don’t be fooled. Chief Justice John Roberts Is as Partisan as They Come. N.Y. Times, Oct. 7, 2019, https://www.nytimes.com/2019/10/07/opinion/john-roberts-supreme-court.html
It has to be understood by many right-leaning constitutional purists that the document is fluid, it changes and it must change with the times. As we evolve into new ages of discovery, morality and environment, we have to learn to let go of this antiquated existence that some of us insist on holding on to. I know for many in power, they have their own agenda with civil rights arguments, but it's up to people to let go of the phone, or the remote and take action to uphold decency in the face of cases and situations like this by demanding progressive, pro-human legislation. As private businesses have overwhelmingly added provisions to their discrimination policies to include sexual orientation and gender into their own "protected classes", it's time so should our own federal and state governments, beginning with comprehensive adjustments to the title VII of the civil rights act.
ReplyDelete