Supreme Court win for LGBTQ community

Photo: Ted Eytan

LGBTQ+ advocates are hailing today’s U.S. Supreme Court ruling that existing federal law forbids job discrimination on the basis of sexual orientation and gender identity. The 37-page decision, issued June 15, is considered a major victory for LGBTQ rights in the area of employment law.

The decision, known as Bostock vs. Clayton County, declares that Title VII of the Civil Rights Act of 1964 — which makes it illegal for employers to discriminate because of a worker’s sex  —  also covers sexual orientation and gender identity. “An employer who fires an individual merely for being gay or transgender violates Title VII,” the decision states.

The 6-3 decision, written by Justice Neil Gorsuch, upholds lower-court rulings that said discrimination based on sexual orientation and/or gender identity was a form of sex discrimination.

“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,” Gorsuch wrote. “Congress adopted broad language [in 1964] making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

Justices Samuel Alito, Clarence Thomas and Brett Cavanaugh dissented.

The decision is a personal victory for Gerald Bostock, who was fired from a county job in Georgia after he joined a gay softball team. The decision also encompasses the cases of Donald Zarda and Aimee Stephens, who are deceased.  Zarda was a skydiving instructor in New York who was fired after telling a client he was gay. Zarda passed away in October 2014. Stephens was a funeral director in Michigan who was fired after coming out as trans. She died in May 2020.

Bostock, a former child-welfare services coordinator in George, issued the following statement: “There are truly no words to describe just how elated I am. When I was fired seven years ago, I was devastated. But this fight became about so much more than me. I am sincerely grateful to the Supreme Court, my attorneys, advocacy organizations like the Human Rights Campaign, and every person who supported me on this journey. Today, we can go to work without the fear of being fired for who we are and who we love. Yet, there is more work to be done. Discrimination has no place in this world. And I will not rest until we have equal rights for all.”

Local civil-rights attorneys emphatically praised today’s decision. 

Angela D. Giampolo, who litigates many LGBTQ antibias cases, was “thrilled” with the decision. “I’m thrilled to see the ruling come down,” Giampolo told PGN. “Every LGBTQ worker within the Commonwealth who believes they were discriminated against due to their sexual orientation or gender identity now has a mechanism to seek relief — even if they are in a county or municipality that doesn’t have protections.”

“I am so happy that the Supreme Court did the right thing,” said Julie Chovanes, a local trans attorney. “This is such a helpful ruling for my clients and all members of the LGBT family. And it is a solid opinion with a 6-3 majority and written by Justice Gorsuch — who was thought to be on the conservative side of the Court.”

Justin Robinette, a local civil-rights attorney, called today’s decision “historic.”

“The Supreme Court goes to great pains to make crystal clear what LGBT people already know — that sex discrimination and LGBT discrimination are inextricably intertwined,” Robinette said. “There is no way to discriminate against an LGBT person without discriminating against them based on their sex. In my opinion, this decision will have far-reaching effects, beyond simply employment law. I have so many clients who are elated because their cases were stalled and now can move forward due to this decision.”

Robinette said today’s ruling means federal law now provides antibias protections for LGBTQ employees throughout the entire country, even though many locales haven’t enacted explicit LGBTQ protections for employees.

Robinette noted that federal appeals courts have been split on the issue since 2017 when the U.S Court of Appeals for the 7th Circuit became the first to rule that gay men and lesbians should be covered by the 1964 Civil Rights Act. The U.S. Court of Appeals for the 2nd Circuit, based in New York, ruled for Zarda in 2018. But the U.S. Court of Appeals for the 11th Circuit, based in Atlanta,  ruled against Bostock. The U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, ruled for Stephens.

Alito, writing more than 100 pages in dissent for himself and Thomas, accused the court’s majority of writing legislation, not interpreting law. “The question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed,” Alito wrote. “The question is whether Congress did that in 1964. It indisputably did not.”

Writing separately, Kavanaugh asserted: “We are judges, not members of Congress.”

Kavanaugh added: “Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate — judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law. Under the Constitution and laws of the United States, this court is the wrong body to change American law in that way.”

The Trump administration had argued that the definition of “sex” in the 1964 Civil Rights Act didn’t encompass “sexual orientation” or “gender identity.”

“The ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation,” the U.S. Justice Department argued. “An employer who discriminates against employees in same-sex relationships thus does not violate Title VII as long as it treats men in same-sex relationships the same as women in same-sex relationships.”

Congress has debated LGBTQ civil rights for decades but repeatedly declined to enact explicit antibias protections for LGBTQ workers. The Democratic-controlled House passed the Equality Act last year — which would provide LGBTQ protections in areas such as employment, housing, credit, education, and public accommodations. But the Republican-controlled Senate has not considered it.

James Esseks, director of the ACLU’s LGBTQ & HIV Project, noted the enormity of today’s LGBTQ victory. “This is a huge victory for LGBTQ equality,” Esseks said, in a statement. “Over 50 years ago, Black and Brown trans women, drag queens, and butch lesbians fought back against police brutality and discrimination that too many LGBTQ people still face. The Supreme Court’s clarification that it’s unlawful to fire people because they’re LGBTQ is the result of decades of advocates fighting for our rights. The court has caught up to the majority of our country, which already knows that discriminating against LGBTQ people is both unfair and against the law. We celebrate the LGBTQ people, including our clients Aimee Stephens and Don Zarda, as well as Donna Stephens, Aimee wife, and Bill Moore and Melissa Zarda, Don’s former partner and sister, who moved these cases forward after they died.”

Esseks added: “Our work is not done. There are still alarming gaps in federal civil rights laws that leave people — particularly Black and Brown LGBTQ people — open to discrimination in businesses open to the public and taxpayer-funded programs. Congress must affirm today’s decision and update our laws to ensure comprehensive and explicit protections for LGBTQ people and all people who face discrimination.”

Donna Stephens, Aimee Stephens’ wife of 20 years, issued this statement: “My wife Aimee was my soul mate. We were married for 20 years. For the last seven years of Aimee’s life, she rose as a leader who fought against discrimination against transgender people, starting when she was fired for coming out as a woman, despite her recent promotion at the time. I am grateful for this victory to honor the legacy of Aimee, and to ensure people are treated fairly regardless of their sexual orientation or gender identity.”

Aimee Stephens, prior to her death, shared the following statement when discussing a possible ruling in her favor: “Firing me because I’m transgender was discrimination, plain and simple. And I am glad the Court recognized that what happened to me is wrong and illegal. I am thankful that the Court said my transgender siblings and I have a place in our laws. It made me feel safer and more included in society.”

Melissa Zarda, sister of Don Zarda, issued the following statement “My brother Don was my rock, my everything. I stood in the Supreme Court to honor his memory and to continue the fight for fairness. What happened to Don was wrong. People in our country already knew this, and now there is no question.”

The Human Rights Campaign also praised today’s decision. “This is a landmark victory for LGBTQ equality,” said HRC President Alphonso David. “No one should be denied a job or fired simply because of who they are or whom they love. For the past two decades, federal courts have determined that discrimination on the basis of LGBTQ status is unlawful discrimination under federal law. Today’s historic ruling by the Supreme Court affirms that view, but there is still work left to be done. In many aspects of the public square, LGBTQ people still lack nondiscrimination protections, which is why it is crucial that Congress pass the Equality Act to address the significant gaps in federal civil rights laws and improve protections for everyone.”

Annise Parker, president & CEO of LGBTQ Victory Institute, echoed HRC’s sentiments. “Millions of LGBTQ people across the country have feared losing their jobs and their livelihoods because of their sexual orientation or gender identity and today’s landmark ruling is a powerful step forward toward ending that reality,” Parker said. “But [today’s] ruling is specifically tied to employment and it remains legal for LGBTQ people to be discriminated against in restaurants, hospitals and other public accommodations. It is time for the U.S. Congress to pass the Equality Act and finally end legalized discrimination against LGBTQ people in America, and for states to pass nondiscrimination laws that provide accessible avenues for legal recourse. The best way to secure these protections is to ensure LGBTQ elected officials are in the halls of power to influence the debate and change hearts and minds. While the ruling is an important moment in our movement for equality, we cannot fully celebrate as we continue to protest the racism and police brutality that Black people, including Black LGBTQ people, face every day in America. The ruling is a step toward justice, but it is a reminder of the discrimination people of color, and especially Black people, continue to face despite legal protections under Title VII.  As the unforgettable Marsha P. Johnson once said: ‘No pride for some of us without liberation for all of us.’ Our nation has much work to do.”

Three Philadelphia officials issued statements extolling today’s decision.

Mayor Jim Kenney issued this statement: “I am encouraged by today’s Supreme Court decision regarding employment discrimination against LGBTQ people across the United States. In Philadelphia, our LGBTQ communities were already protected under local laws, but found themselves vulnerable when they left city limits. That’s why it was so critical that the Supreme Court affirm protections for LGBTQ people across the nation.

“LGBTQ communities here in Philadelphia and across the country have experienced incredible pain in recent weeks following the killings of their transgender siblings—Tony McDade, Nina Pop, Dominique Rem’mie Fells, Riah Milton, and too many others. These losses came at a time when the community would normally be celebrating the joyous occasion of Pride Month. And while today’s news will not take away the pain so many are feeling, I hope it brings some sense of comfort that our country is slowly making progress. The Court’s decision is a critical step in protecting members of our LGBTQ communities from discrimination that is still pervasive throughout the nation. Today, we celebrate this momentous ruling with our LGBTQ community members.”

Celena Morrison, executive director of the city’s Office of LGBT Affairs, issued this statement: “Today, the Supreme Court of the United States delivered its opinion on employment discrimination protections for LGBTQ people across the country. The opinion affirmed what we in the city of Philadelphia have long known to be true: our LGBTQ communities need and deserve the protection of full equality under the law.

“The City of Philadelphia has proudly been a home for our vibrant LGBTQ communities, with strong laws in place protecting us from discrimination in employment, public accommodation, and housing. We are glad to see this affirmed on a national scale.

“After weeks of mourning following the killings of our trans siblings, we are glad our communities now have a victory to celebrate — even if it is long overdue. The Office of LGBT Affairs and the City of Philadelphia remain as committed as ever to the mission of fostering equal working and living conditions for lesbian, gay, bisexual, transgender, and queer people. We will continue to advocate for LGBTQ people in all areas of City government.”

Rue Landau, executive director of the Philadelphia Commission on Human Relations, issued this statement:  “The Supreme Court’s decision finally ends the patchwork of LGBTQ employment protections across the country. Today, we can say all LGBTQ people in America have the right to be who they are in the workplace without the fear of being fired. This is especially important for LGBTQ people of color who often face discrimination based on their intersectional characteristics. In Philadelphia, we have been protecting LGBTQ people from discrimination in employment, housing and places of public accommodation for almost 40 years. The Philadelphia Commission on Human Relations is elated that it is now explicitly clear for the rest of the country that, ‘An employer who fires an individual merely for being gay or transgender defies the law.’ We will continue to fight for comprehensive statewide and national LGBTQ protections in housing and public accommodations.”

The National Gay & Lesbian Chamber of Commerce (NGLCC), along with its partner Out Leadership issued this statement “[We] are elated the Supreme Court has ensured a state-sanctioned license to discriminate will not be issued in this country’s workplaces. The LGBT community is a vital part of the American economy and deserves equal treatment under the law. The NGLCC and Out Leadership will continue to advocate for our community’s right to live their lives free from discrimination in their places of business and in their local communities, which this decision now affirms.

“This decision is a step forward for LGBT rights in the United States, and reminds all of us that the protections for other minority groups, including people of color, the differently-abled, and women, must also be upheld and strengthened. This decision brings national attention to many of the inequities that have kept law-abiding LGBT citizens from achieving all they can. We are now renewed in our determination to see the United States Congress now pass The Equality Act, enshrining these and other essential protections into federal law. Our economy simply does not achieve all it can unless everyone is included and given a fair shot. The protections of the Equality Act bring us much closer to the inclusion we need for the American Dream to be accessible to every LGBT American.

“Business will continue to be the catalyst for positive change for America’s diverse and marginalized communities. At NGLCC and Out Leadership, we have nearly 400 corporate and government partners that already understand the economic imperative of inclusivity within their company and throughout their supply chains. Just as we saw a patchwork of marriage laws ultimately evolve into a unified protection of the freedom to marry, we will always advocate for a coast-to-policy of inclusive workplaces and business environments where all LGBT Americans are able to achieve their full potential.”

The National Minority AIDS Council issued this statement: “Yesterday, millions of LGBT Americans went to bed fearing the loss of their jobs because of their sexual orientation or gender identity.  As a result of today’s decision, those same Americans will go to bed tonight knowing that they no longer have to be fearful of losing their jobs. In the absence of a functioning Senate, we are sadly becoming more dependent on a conservative court for full civil rights. And, while today is an historic day for LGBT Americans, we know that this journey won’t be completed until the full spectrum of rights are afforded to LGBT individuals. We will continue to fight against this administration’s unrelenting attacks against transgender Americans, especially discriminatory health practices, and we will continue to fight against the ugly health crisis known as racism, which continues to grip our nation.”

U.S. Representative Brendan Boyle (D-Philadelphia) issued this statement:  “Today is a landmark day in the history of our country. The U.S. Supreme Court has ruled it is illegal for an employer to fire someone because of their sexual orientation or gender identity. Finally, all LGBTQ+ individuals have equality in the workplace.

“This is special for those of us who have been longtime advocates of equality. When I was a new member of the Pennsylvania State House back in early 2009, I cast the deciding vote in committee to ban LGBTQ+ discrimination in the workplace & housing in the state. I was stunned by the amount of hateful emails and calls I received because of my vote. Shamefully, the bill never passed the full state legislature and it still hasn’t over a decade later. But today’s Supreme Court ruling once and for all resolves what our state legislature never did: You cannot be fired for who you are or who you love.”

Elaine Turner, a nationally-recognized labor attorney, conveyed her views on today’s decision. “Bostock is an historic decision that resolves whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment against individuals simply because they are gay or transgendered.  In the 6-3 opinion, Justice Gorsuch wrote that, with respect to Title VII, ‘An employer who fires an individual merely for being gay or transgender defies the law,’” Turner said, in a statement.

“In the last several years, lower federal courts have differed on whether the prohibition of sex discrimination in Title VII prohibited discrimination based on sexual orientation and transgender status.  To make the issue even more complicated, the Equal Employment Opportunity Commission, the federal agency that enforces Title VII, has interpreted and enforced Title VII as forbidding any employment discrimination based on gender identity or sexual orientation.  The dispute among the EEOC and the several lower federal courts has now been resolved by the United States Supreme Court,” Turner added.

“Today’s opinion will have a long term impact on employers who are subject to Title VII – those having 15 or more employees.  Regardless of contrary state laws, such employers may not discriminate against individuals in employment decisions because they are gay or transgender. Those that do, violate Title VII and are subject to legal actions against them that could be very costly. There will no doubt be cases for the next several years addressing religious liberty issues that will be raised by some employers in defense of such Title VII claims. Employers with less than 15 employees will continue to be governed by applicable state and local anti-discrimination laws,” Turner concluded. 

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Tim Cwiek has been writing for PGN since the 1970s. He holds a bachelor's degree in history from West Chester State University. In 2013, he received a Sigma Delta Chi Investigative Reporting Award from the Society of Professional Journalists for his reporting on the Nizah Morris case. Cwiek was the first reporter for an LGBT media outlet to win an award from that national organization. He's also received awards from the National Lesbian and Gay Journalists Association, the National Newspaper Association, and the Keystone Press.