Brian Klosterboer, left and, Candy Marcum, right
Tammye Nash | Managing Editor
In an unexpected and strongly-worded opinion, the U.S. Supreme Court on Monday, June 15, ruled that Title VII of the federal Civil Rights Act does, indeed, prohibit discrimination in employment against LGBTQ people, handing the community a victory we have spent decades fighting for.
The ruling comes in the case Bostock v. Clayton County, which was consolidated with two other cases — one an anti-gay discrimination case filed by Donald Zarda, and one an anti-transgender discrimination case filed by Aimee Stephens. Perhaps most stunning for LGBTQ activists and allies was that usually-conservative Chief Justice John Roberts Jr. and Justice Neil Gorsuch voted with more progressive Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Gorsuch, a Trump appointee, wrote the majority opinion, declaring, “Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.
“In Title VII, Congress adopted broad language 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.”
But even as the celebrations began, there were those who urged against complacency. Chase Strangio, a trans activist and ACLU attorney who was on the team representing Aimee Stephens, cautioned via Twitter, “Do not let the bare minimum of legal victory lull us into complacency. We must continue to resist and dissent and rise up. We deserve wins like these AND we deserve so much more.”
And questions certainly remain as to how far-reaching the ruling will actually be. While the Supreme Court has declared that the word “sex” in Title VII of the Civil Rights Act does specifically include sexual orientation and gender identity. But will this interpretation hold true in other federal statutes?
Brian Klosterboer, an attorney with the ACLU of Texas, said this week that the interpretation of “sex” in this ruling won’t automatically apply to other federal statutes and policies, “but I do think it is a big step forward, especially for LGBTQ people in Texas, where we didn’t have a lot of existing legal protections.” In fact, he noted, the Fifth Circuit Court of Appeals, which hears cases appealed from federal courts in Texas, “has ruled in a lot of similar cases, and they have said that transgender and LGB people are not covered under ‘sex.’”
And while the Bostock ruling this week “is very profound, and should apply to other situations” in which federal statutes prohibit discrimination based on sex, such as in housing, education and healthcare, such an interpretation isn’t a given.
The issue of discrimination in healthcare is especially prominent right now, after the Trump administration on June 13 rolled back regulations put in place by the Obama administration specifically stating that the Affordable Care Act prohibits discrimination against trans people under wording prohibiting discrimination based on sex.
“Several courts have already held that the ACA does include protections for transgender people, and this ruling gives more fire to that,” he said. “It helps put Trump on very unstable grounds to try and claim that ACA does not protect transgender people.”
Klosterboer stressed that, as protests continue across the country in the wake of the murder of George Floyd, the black man killed by a Minneapolis police officer, “It is important to note that the groundwork for this decision was laid 50 years ago by, especially, black trans women [at Stonewall] and black civil rights activists.
But he also pointed out that just because such discrimination has long been prohibited by law, “as recent events are proving again, that doesn’t mean that it doesn’t happen.”
“Before this ruling, some employers were not afraid to say, ‘I’m going to fire you because you are transgender’ or ‘because you are gay or bisexual,’ because they thought that was legal. When it comes to racial discrimination, most of them know better than to come right out and say that they won’t hire or are firing someone because of their race. But we all know that still happens,” Klosterboer said. “The ruling this week was definitely a momentous ruling. It says that LGBTQ people have this formal, legal equality. But the fight for actual lived equality continues, especially for those with multiple identities, like black transgender women. The work continues, the fight continues to turn these rights on paper into realities.”
Effects on mental health
The Bostock ruling definitely extends beyond the workplace and into the realm of mental health for LGBTQ people, according to licensed professional counselor Candy Marcum.
“I knew I was a lesbian at an early age, and I knew that meant I would have to take care of myself financially,” Marcum said this week. “Getting and keeping a job meant security and survival. This was at a time when the Stonewall Riots had just happened, and LGBTQ people were starting to stand up for what was fair and right. We stood up for equal rights, not special rights. And yet, I could lose my ability to be self-sufficient if my employer didn’t like the fact that I was a lesbian.”
For many LGBTQ people, Marcum continued, that meant “hiding their authentic selves — no photos on the desk that spoke of who we loved and who we dated. Social talk around the water cooler was about changing pronouns, so as not to ‘out’ ourselves.”
But, she said, that takes a toll on a person, emotionally and mentally and even physically.
“When you hide who you are, you lose a part of yourself,” she said. “You lose the part that says, ‘I belong,’ the part that says, ‘I’m a good person.’ When you have to hide, you build up shame inside you. That’s why there is a higher incidence of alcohol and drug abuse in the LGBTQ community. Abusing alcohol and drugs is a way to deal with the shame, with the internalized homophobia.”
The Supreme Court’s ruling this week takes away that weapon used to keep so many in the community in hiding and battling their own internalized shame.
“This Supreme Court ruling gives us, the LGBTQ community, the opportunity to heal our emotional wounds and hold our heads up high,” Marcum said. “So go ahead: Put those adorable photos of your loved ones on your desk. Use the correct pronouns. Legally, you get to be your authentic self. You can celebrate your fabulous selves.”
Be aware of subtle discrimination
But even as you celebrate, Klosterboer said, be aware of the possibility for subtle discrimination, and be prepared to fight for your rights if the need arises.
“If you feel like you are being discriminated against because you are LGBTQ, document everything as much as you possibly can,” he advised. “These cases are very fact-intensive. It matters what the boss or the manager says. And get it all in writing if you can, things like email and evaluations. Having it in writing is always better.”
And, he said, if you feel like you are being discriminated against in relation to your employment, don’t wait to act. There is a limited time frame in which you can file a complaint with the EEOC, so do it sooner rather than later.
“And if you feel like you have been discriminated against, talk to a lawyer,” he said. “This ruling gives people an avenue for help they didn’t have last week. Use that avenue.”