November 8, 2019

Part of the text of Title VII of the Civil Rights Act of 1964 states, “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

In 17 US states there are no protections for LGBTQ+ workers — you can be fired, harassed, or not hired at all based solely on your sexual orientation or queer gender identity. Of the 33 remaining, ten only offer protections to public (government) employees or to gay/bisexual people but not to gender-queer. Only 23 states fully prohibit discrimination based on gender identity or sexual orientation. Hopefully, these depressing numbers may change for the better in the near future.

Several weeks ago, the Supreme Court heard two different cases. The first case addresses the question of whether Title VII protects transgender people from workplace discrimination or firing. In 2013, a woman named Aimee Stephens was fired from her job at a funeral home two weeks after coming out to her boss as transgender, after working there for around six years. There’s no question that she was fired for being trans; her boss literally said that Stephens’ new way of presenting herself “disrupted the grieving and healing process” of “clients mourning the loss of their loved ones.” She was technically fired for a dress code violation because she dressed as a woman while her boss viewed her as a man. This should be the easier case to decide: she was fired for her gender identity. If she was a cisgendered woman would she have been fired for wearing feminine clothes? No. Therefore, she was the object of unequal treatment on the basis of sex.

The second case, a combination of two different lawsuits by gay men who were allegedly fired for their sexuality, is a little more complicated. Don’t tell the Supreme Court justices this, but I don’t think that the original Act actually covers sexuality. It pretty clearly wasn’t the intention. It’s hypocritical for queer activists to explain that “gender and sexuality are two different spectrums!” and then expect them to be interpreted as the same in this instance. That being said, do we desperately need the Supreme Court to protect the gay workers of America? Of course! Is Congress going to get any legislation like that passed? Not anytime soon! I very much want them to decide that the protection extends, no matter logic, but I’m doubtful that they will.

Nevertheless, an excellent point made by Pamela Karlan, an attorney representing the gay men, is that if a man is fired for dating men but a woman isn’t fired for doing the exact same, his employer, “violates Title VII.” Justice Elena Kagan seemed to agree with this reasoning when she posed the question, “Would the same thing have happened to you if you were of a different sex?” She said that this is a very simple way to determine whether Title VII is applicable to a case. If the Justices stick to interpreting the Constitution, not following party lines, maybe they’ll agree.

The shaky financial future of millions of Americans for now is undetermined, and rests in the hands of exactly nine people. Have hope.

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