Gay And Transgender Cases Before Supreme Court, Roberts Might Be Key


The Supreme Court this session has some powerfully important cases which impact our families, friends, and communities.  And it kicks off today with arguments whether federal discrimination laws protect gay and transgender workers.  To the average reasoned person looking at the cases, they seem to have a very tell-tale need for court action so to right a wrong or take the next step in the long national story of setting judicially mandated legal stones in place for social maturity.

And let me make the point even more clear in terms of numbers of Americans to be impacted with legal action taking place over the coming months.

Over 10 million adults in this country will continue to be unfairly vulnerable to discrimination as they largely have been to date, or they will be swept under an umbrella that provides important employment protections.  So yes, what happens will impact someone you know!

The issue for the court is the reach of Title VII of the Civil Rights Act of 1964, which, besides protecting against workplace discrimination because of race, religion and other characteristics, also prohibits discrimination ‘because of sex.’  

The court combined two cases to consider whether gay workers are covered. Gerald Bostock claims he was fired from his job as a social worker in Clayton County, Ga., after he became more open about being gay, including joining a gay softball league.  Donald Zarda said he was fired as skydiving instructor after joking with a female client to whom he was strapped for a tandem dive that he was gay. (Zarda died in 2014.)

The transgender case involves Aimee Stephens, who worked for years at a Michigan funeral home before being fired after informing the owners and colleagues of her gender transition.

The court will hand down highly important rulings about discrimination for gay and transgender people–in a presidential election year.  It will be nothing short of a barometer reading concerning how this newly formed set of conservative justices view the rights of gay Americans.  But therein lies the problem, which will need a political fix in Congress.

For 50 years, courts read the 1964 law to mean only that women could not be treated worse than men, and vice versa, not that discrimination on the basis of sex included LGBTQ individuals.  The Equal Employment Opportunity Commission has said the 1964 act does guarantee protections for gay people.  My readers will not be surprised that the Trump administration has pushed for the Act to be viewed as not applying to sexual orientation or transgender status.

So bring in the justices to weigh in on the law of the land.   And also bring up the stress level for gay Americans who seek equality and protection under the law.

The cases come down to a central general concept.  Anyone is free to have an opinion, but that person is not free to discriminate on the basis of it.  That seems a very basic and easy to digest summation.

How we are still doing battle for the rights of people over sexual persuasion and identity is, on the one hand baffling, while on the other hand offensive.  As the cases are now heard this session, and in 2020 when the cases are ruled should already be a time when it is most clear that such discrimination is not only illegal, but also immoral and inhumane.   What is wrong with people who think their bigotry should rule?

From a legal perspective I do find credibility with the argument that trying to interpret Title VII, a law passed some 55 years ago, might be problematic when dealing with the issues at hand today–such as with transgender people.   I understand the legal and political jockeying that such a line of thinking takes us.   Because with that line of reasoning comes the need for another new law to prohibit anti-gay discrimination.

That would be a long political chapter to watch unfold.  But it would be far better, in the long run, to do the hard work and pass legislation than to allow for bigots to discriminate against gay and transgender people and do so in a ‘legal’ fashion based on some tortured ruling from this conservative court.  Because in the end as the rulings are handed down, sadly saying, I think the gay and transgender community will come up short.

The unknown that I have written about at times when discussing the Supreme Court is the degree to which Chief Justice Roberts’s concern for the Court’s legacy is enough to stand up to the overtly partisan conservative majority.  Roberts, like any court leader, wants the era to reflect a positive trajectory.  That will not happen with corn-pone rulings aimed for the lowest common denominators in the land.

And so it goes.