"They've ruled and we live with the decision; we live with the decision of the Supreme Court."Pres. Trump’s Reaction to Supreme Court’s Decision
Handed Down in Bostock v.Clayton County (2020)
Dead smack-in-the middle of a pandemic/pan-protest/pan-economic crisis, the Supreme Court of the United States handed down a ruling addressing the civil rights of LGBTQ Americans.
This was the question that our highest court was asked to answer:
Can an employer fire someone for being homosexual or transgender?
Another way of asking that question is:
Does federal employment law protect the LGBTQ community?
Pay close attention to the fact that in the second the question specifies “federal law.”
Federal law is separate from State and City law. In fact, in New York, the answer to the question answered by the Supreme Court is clear:
In New York, an employer cannot fire someone simply for being homosexual or transgender. New York State law affords the LGBTQ community robust statutory and decisional law protection in the workplace. But many other states do not have that protection and must rely on federal law.
If the Supreme Court determined that federal law does not afford that protection, the LGBTQ community will be left with nothing until the federal law is amended or their respective state legislatures provide that specific protection.
The reason that the case went all the way up to the Supreme Court is because the federal courts were not in agreement as to whether federal law provided the same protection afforded by state laws like New York’s. In fact, fewer than half of the 50 states currently ban employment discrimination based on gender identity or sexual orientation.
The legal question came down to the language of the federal employment law (Title 7 of the Civil Rights Act of 1964), which bars discrimination because of “sex” but does not specifically mention sexual orientation or gender identity.
The Supreme Court has now settled that question: the answer is that federal law does protect the LGBTQ community.
Let’s talk about the facts of the Bostock case with this backdrop:
In 2011, about 8 million Americans identified as lesbian, gay, or bisexual -- roughly 25% report experiencing workplace discrimination because their sexual preferences do not match their employers’ expectations. So what is the number now in 2020, and what is the number including those who choose not to identify for fear of being persecuted? Probably more than 8 million.
Gerald is a gay male. He is 56 years old at present.
For ten years, Gerald had worked for Clayton County as the Child Welfare Services Coordinator, as an advocate for children in the juvenile justice system. He received strong performance evaluations and was placed in charge of the county’s Court Appointed Special Advocates program. Under Gerald’s leadership, the county won national awards for its work.
Then, in January 2013, Gerald joined a gay recreational softball league. He was openly criticized for being gay by someone with significant influence in the Clayton County court system.
In May 2013, at a meeting with an advisory board for his program, Gerald was disparaged for his sexual orientation and his involvement in the league.
Out of nowhere, in June 2013, the county accused Gerald of mismanaging public funds.
The stated reason for his termination, was “conduct unbecoming of a county employee.”
Gerald denied the accusation and filed a complaint under federal law calling the false charge a pretext for firing him because of his sexuality.
Gerald’s employer filed a motion to dismiss the complaint arguing that federal law did not protect Gerald. Although federal law protected workers against discrimination based upon sex, they argued, discrimination “because of sex” is very different than “because of sexual orientation.”
The Supreme Court of the United States:
The Supreme Court did not agree with Gerald’s employer.
Title VII’s command is that it is “unlawful . . . for an employer…to discriminate against any individual with respect to…employment, because of such individual’s race, color, religion, sex, or national origin.”
With those words as a touchstone, Justice Gorsuch, who was appointed by President Trump, wrote:
“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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”Justice Gorsuch
And that is the end of it.
Our legislature enacted Title VII in 1966. And it could have been argued that those who adopted the Civil Rights Act might not have dreamed that their work would lead to the recognition of the rights of the LGBTQ community. There was plenty going on in the civil rights regime back in 1966. So they probably were not envisioning the possibility that “sex” would cover a prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees.
As to that argument, Justice Gorsuch wrote this:
“But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.”Justice Gorsuch
In other words the statute means what the statute says – nothing more, nothing less.
Justice Gorsuch gave an example of how the “sex” of an individual matters in the LGBTQ discrimination context:
You have an employer with two workers who are both attracted to men and are, for all intents and purposes, identical, but one is male and one is female. If the employer fires the male worker only because he is attracted to men, while keeping the female worker, the employer has violated Title VII.
What Good Comes Out Of This Decision - For Everyone?
I reminded you at the beginning that the rights recognized by the Supreme Court in this decision are already enjoyed by New Yorkers. The only difference it makes in New York is, for example, that if an LGBTQ litigant now has the choice of going to the state court located at 60 Centre Street or, now, the federal court right behind it at 500 Pearl Street.
But there is something more important that was illustrated, which is why I started this piece with a quote from our President.
In some elementary schools, students watch Schoolhouse Rock to learn about our government.
The song “Three Ring Government” teach students about the separation of powers, and that Congress in particular is tasked with writing and passing the laws. The song goes:
“No one part can be more powerful than any other is. Each controls the other you see, and that’s what we call checks and balances.”School House Rock
Many people were concerned about the fact that this Supreme Court could be controlled by President Trump -- Justices appointed by President Trump are labeled conservative.
Many people are concerned about judges who do not follow the law and create laws from the bench by applying the law in accordance with what they feel is justice.
Where would the separation of powers be if those concerns were true.
In this case we have a Law written by legislators.
The law was applied by the Justices of the Court (including Justice Gorsuch, appointed by the President), exactly as the Law was written.
The President of the United States, who was hoping for a different outcome, uttered to his public that the Supreme Court’s decision is the law of the land.
We have, people, Separation of Powers in real time – exactly how the Framers of the Constitution had envisioned.
Where Is Gerald Now?
Gerald moved to Atlanta and found a job at a hospital as a mental health counselor for adults.
“Only the written word is the law, and all persons are entitled to its benefit.”Bostock v Clayton County (Gorsuch, J.)
Here is the 182-page Decision: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf