The fight for civil rights in America is as old as the country itself, which first declared that we were all created equal with the rights to life, liberty and the pursuit of happiness in 1776. From the nation’s imperfect founders to its 45th president today, our country’s changemakers have challenged American leadership to honor those ideals ever since.
It’s why the LGBTQ community honors Pride Month each June; a celebration bore from the 1969 riots at New York City’s Stonewall Inn. The modern movement for LGBTQ equality began as a product of its time, a response to abusive authorities in a decade rich with protests for the rights of minorities.
As those same minorities press on today, fighting for equality in the streets and voting booths across the country, the courts charged with ensuring our American right to life and liberty continues to debate it. That includes our nation’s highest, the Supreme Court of the United States (SCOTUS).
A total of 114 Americans have served as Justices on the court, nominated by presidents of each major political party and confirmed by the Senate to serve lifetime appointments. In its 228-year history, four have been women, three have been people of color and none have openly identified as LGBTQ.
Its current makeup of nine features one Chief Justice – John Roberts, nominated by former President George W. Bush, and eight associates. They are Associate Justices Thomas, nominated by George H.W. Bush; Ginsburg and Breyer, nominated by Bill Clinton; Alito, nominated by George W. Bush; Sotomayor and Kagan, nominated by Barack Obama and Gorsuch and Kavanaugh, nominated by Donald Trump.
This Pride Month, on June 15, they ruled that LGBTQ Americans are protected from employment discrimination under federal civil rights law.
THE LAW
U.S. presidents have done more to advance or diminish American equality than nominate justices. On June 11, 1963, former President John F. Kennedy addressed an embattled nation from the Oval Office to deliver his Report to the American People on Civil Rights.
The historical address was a response to threats of violence at the University of Alabama as its campus admitted its first African American students. His administration sent the National Guard to the school, calling civil rights an issue of morality.
“This nation was founded by men of many nations and backgrounds,” Kennedy shared. “It was founded on the principle that all men are created equal, and that the rights of every man are diminished when the rights of one man are threatened.”
Inequality wasn’t a partisan issue, he noted, but a moral crisis as “clear as the American Constitution.” Kennedy advised that “the heart of the question is whether all Americans are to be afforded equal rights and equal opportunities, whether we are going to treat our fellow Americans as we want to be treated.”
It’s why he asked Congress “to enact legislation giving all Americans the right to be served in facilities which are open to the public – hotels, restaurants, theaters, retail stores and similar establishments.”
“This seems to me to be an elementary right,” he shared. “Its denial is an arbitrary indignity that no American in 1963 should have to endure, but many do.” You can read its text and watch it in full here.
Kennedy was assassinated just over five months later, but the legislation he proposed moved forward with his successor. President Lyndon B. Johnson signed the Civil Rights Act of 1964 into federal law the following July.
The landmark legislation ended public segregation based on race, religion or national origin. Its Title VII also barred employment discrimination on the basis of race, color, religion, sex or national origin. Nearly 60 years later, SCOTUS has now weighed whether that pertains to LGBTQ workers.
THE CASES
SCOTUS announced that it would review three LGBTQ-focused cases on April 22, 2019. Two of them address workplace discrimination based on sexual orientation – Altitude Express Inc. v. Zarda and Bostock v. Clayton County – and the third addresses discrimination based on gender identity, R.G. & G.R. Harris Funeral Homes Inc. v. the Equal Employment Opportunity Commission (EEOC).
The first dates back to 2010, when the late skydiving instructor Donald Zarda was fired from Altitude Express in New York. He lost his job after revealing he was gay to a female client before a shared skydiving session.
Zarda did so “in an effort to make her more comfortable with their close physical contact,” his sister has advised. After his accidental death in 2014, she and his surviving partner have continued his estate’s legal battle. After a federal trial court rejected the discrimination claim, an appeal to the U.S. Court’s Second Circuit ruled in 2018 that the Civil Rights Act should have protected his employment.
The second case was brought by Gerald Lynn Bostock, a gay man who worked in child welfare in the juvenile court system in Clayton County, Georgia. He was fired in 2013 after he began playing for the area’s LGBTQ softball league, which he’s said led to high profile criticism in the workplace and ultimately his termination, all due to his sexual orientation.
Bostock’s workplace discrimination suit was dismissed in 2016 by a district court. He subsequently appealed to the U.S. Court’s Eleventh Circuit in 2018, which affirmed the decision, leading him to petition SCOTUS for review.
The final case centers on the late Aimee Stephens, who died May 12. She was fired from her role as an embalmer and the R.G. and G.R. Harris Funeral Home funeral director in Garden City, Michigan after revealing she was transgender in 2013.
Her firing prompted Stephens to file a complaint with the EEOC, which was created to enforce the Civil Rights Act. After a district court ruled in favor of the funeral home, the U.S. Circuit’s Sixth Circuit reversed the decision in 2018 before they appealed to SCOTUS.
THE RESPONSE
The news that the court would review the high profile cases prompted LGBTQ organizations to mobilize around the country – including Equality Florida, the state’s largest.
“This country’s values are rooted in the belief that all people are created – and should be treated – equally,” Equality Florida Public Policy Director Jon Harris Maurer shared at the time. “No one should fear being fired or face discrimination because of who they love or who they are.
“Federal courts have affirmed time and again that discrimination against the LGBTQ community is against the law,” he continued. “The Supreme Court now has the opportunity to solidify those protections and reaffirm that all people should be free to work and live without fear of discrimination.”
Equality Florida called on state lawmakers to pass the Florida Competitive Workforce Act (FCWA) in response. First introduced in 2009, it would prohibit discrimination based on sexual orientation and gender identity or expression in employment, housing and public accommodations throughout the state.
The FCWA has received widespread, bipartisan support but has not been granted a hearing in the Republican-controlled state legislature. Only 60% of LGBTQ Floridians are covered by local protections.
Equality Florida’s calls for action echoed those of the Human Rights Campaign (HRC), the nation’s largest organization dedicated to securing LGBTQ equality. They called upon Congress to immediately pass the Equality Act.
Once signed into law, it would amend existing federal civil rights law – including the Civil Rights Act of 1964 – to prohibit discrimination on the basis of sexual orientation and gender identity in employment, housing, public accommodations, public education and more.
It passed in the Democratic-controlled U.S. House of Representatives on May 20 but to date has not been advanced by the Republican-controlled U.S. Senate.
In Aug. 2019, the White House spoke out against the Equality Act’s partial movement, claiming it was “filled with poison pills.” The dissent echoed the Trump administration’s stance that SCOTUS should rule against LGBTQ workers, arguing that protections from the Civil Rights Act do not extend to sexual orientation or gender identity.
More than 200 major businesses and organizations disagreed, filing a landmark “friend of the court” brief in support of LGBTQ workers. The organizations represented more than 7 million employees and more than $5 trillion in revenue from a wide range of industries, from Apple to the Walt Disney Company.
HRC was joined by fellow advocacy organizations Lambda Legal, Out & Equal, Out Leadership and Freedom for All Americans in announcing the brief. Signers argued that LGBTQ nondiscrimination and inclusion are beneficial for both big business and ultimately the American economy.
“At this critical moment in the fight for LGBTQ equality, these leading businesses are sending a clear message to the Supreme Court that LGBTQ people should, like their fellow Americans, continue to be protected from discrimination,” HRC Senior Vice President for Programs, Research and Training Jay Brown shared.
“These employers know first-hand that protecting the LGBTQ community is both good for business and the right thing to do,” he continued. “With so much progress on the line, we are grateful that so many major American companies are standing up for the rights and dignity of their LGBTQ employees, family members and customers.”
THE HEARING
SCOTUS heard more than two hours of debate in a crowded courtroom on the morning of Oct. 8, 2019. Altitude Express Inc. v. Zarda and Bostock v. Clayton County were argued together, followed by R.G. & G.R. Harris Funeral Homes Inc. v. the EEOC.
Experts observed that the justices appeared divided, emphasizing the high stakes involved in each case. Reports noted that the four whose views have been deemed more liberal – Ginsburg, Sotomayor, Kagan and Breyer – advocated for LGBTQ inclusion with their questioning and contemplation. Those deemed more conservative, now the court’s majority, challenged it.
Roberts, the SCOTUS’ conservative Chief Justice, remarked that Congress did not intend to include LGBTQ workers in 1964. Breyer countered that the Civil Rights Act was enacted to help the most vulnerable of Americans.
“In the 60s, we were only 10 years away from where people who were real slaves and discriminated against obtained a degree of freedom,” Breyer advised. “These statutes were all part of a civil rights movement that was designed to include in our society people who had been truly discriminated against for the worst of reasons … this civil rights statute, when it was passed, would have put in the category gay people, transgender people as people who were suffering terrible discrimination.”
In an analysis shared after the hearing via SCOTUSblog, the definitive, long-running resource dedicated to high court coverage, its former editor Amy Howe called the forthcoming ruling unclear.
The outcome “could hinge on Justice Neil Gorsuch, who at times appeared sympathetic to the plaintiffs’ argument,” she wrote, “but also expressed concern about the ‘massive social upheaval’ that he believed would follow from a ruling for them.”
HRC quickly called on SCOTUS to uphold LGBTQ employment protections. “Multiple federal courts have ruled that anti-LGBTQ discrimination is a form of sex discrimination that violates federal law,” they shared that day. “These courts have found that discrimination against LGBTQ people violates laws including Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972 and the Affordable Care Act.
“The Trump-Pence administration, however, has recently attempted to redefine federal sex discrimination through regulations in an effort to erase protections for transgender people, and has asked the Supreme Court to reverse course and bar LGBTQ people from receiving federal non-discrimination protections,” they continued. “The Supreme Court’s decision in these cases could effectively decide whether to solidify or take away non-discrimination protections for LGBTQ people under federal civil rights laws — which prohibit sex discrimination in contexts ranging from employment to housing, healthcare and education.”
“The growing legal consensus is that our nation’s civil rights laws protect LGBTQ people against discrimination under sex non-discrimination laws,” HRC President Alphonso David added. “The Supreme Court has an opportunity to clarify this area of law to ensure protections for LGBTQ people in many important areas of life. This decision will have very real consequences for millions of LGBTQ people across the country.”
THE IMPACT
Despite unprecedented support from leading American businesses and the historical, bipartisan passage of the Equality Act in the U.S. House, LGBTQ workers continued to lack federal protections until the decision. In 27 states, there are still no explicit laws prohibiting LGBTQ discrimination in employment, housing or public accommodations.
More than one year after SCOTUS announced it would weigh workplace equality, studies found that LGBTQ discrimination throughout the country is surging. The Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy at the UCLA, which advances public policy through independent research, released results from its Oxford Research Encyclopedia of Politics on April 29.
Researchers found that there are an estimated 7.1 million lesbian, gay and bisexual workers in the U.S. ages 16 and older, with 3.4 million living in states without employment protections. Another 1 million are estimated to identify as transgender, with 536,000 workers living in unprotected states.
That includes Florida. The Institute’s research found that 545,000 workers identify as members of the LGBTQ community; 474,000 as L, G and B and 71,000 as T.
They also reported that nationally, 60% of LGB people shared they had been fired from or denied a job, with 48% advising that they were denied a promotion or received negative evaluations. By comparison, the numbers were 40% and 32% respectively for their heterosexual co-workers.
THE DECISION
Justice Gorsuch delivered the opinion of the high court, which ruled 6-3 that an employer who fires an individual merely for being LGBTQ violates Title VII of the Civil Rights Act. Gorsuch was joined by Chief Justice John Roberts as well as Justices Ginsburg, Breyer, Sotomayor and Kagan. Justices Alito, Thomas and Kavanaugh dissented, with the latter writing the court’s dissenting opinion.
Gorsuch cited cases establishing precedent on the scope of Title VII to reach the conclusion that it bars anti-LGBTQ 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,” the decision reads. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
“The employers assert ‘no one’ in 1964 or for some time after would have anticipated today’s result,” Gorsuch also wrote. “But is that really true? Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.”
In the court’s dissent, Kavanaugh shared that “In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views.
“Judges may not update the law merely because they think that Congress does not have the votes or the fortitude,” he continued. “Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway.”
LGBTQ-focused organizations around the country celebrated the SCOTUS decision, calling it a victory for equality. That was echoed by former Vice President Joe Biden, the presumptive Democratic nominee for president.
“The story of our nation is one of a relentless march toward greater justice and greater equality for all people,” he shared June 15. “Fifty years ago this month, the first Pride march took place in New York City as a protest — as a call for liberation. Today, by affirming that sexual orientation and gender identity discrimination are prohibited under Title VII of the Civil Rights Act, the Supreme Court has confirmed the simple but profoundly American idea that every human being should be treated with respect and dignity. That everyone should be able to live openly, proudly, as their true selves without fear.
“This decision is another step in our march towards equality for all,” he continued. “And while we celebrate this victory today, we know that our work is not yet done. As President, I look forward to signing into law the Equality Act, protecting the civil rights of LGBTQ+ Americans, and championing equal rights for all Americans. Happy Pride!”
As of press time, Donald Trump and his administration, which argued SCOTUS should not protect LGBTQ workers in America, had not offered a public response.
THE BIG DAY
Equality-focused organizations throughout the nation have partnered with DecisionDay.org to present a virtual rally and town hall. They will join the National Equality Action Team, National LGBTQ Task Force, PFLAG, the National Center for Transgender Equality and more in discussing the ruling’s impact on LGBTQ Americans.
“This spring, community organizations, LGBTQ+ state groups, faith communities and everyday individuals are organizing to respond when the U.S. Supreme Court issues its decision,” DecisionDay.org reads.
LGBTQ leaders from across the nation and those who led the fight for the cases will hold a rally at 7 p.m. EST before a town hall with a panel of experts begins at 8 p.m. “Let’s come together, lift each other up during difficult times, and give thanks to those who fought this case for our community,” the organization advises.
For more information about registering for a #DecisionDay event, visit DecisionDay.org.
For more information about the Human Rights Campaign or Equality Florida, visit HRC.org and EQFL.org.
