By Cindy Chen
On October 8th, the LGBT community waited in suspense as the Supreme Court of the United States heard cases on an issue that has lasting implications for millions of Americans: whether it was legal to fire a person based on their gender identity or sexual orientation.
This isn’t the first time the rights of the LGBT community have been called into question. The Supreme Court has weighed in on similar cases in the past. Each case had major implications for the LGBT community and drastically shaped what was deemed equal under the law.
In 1958, One, Inc. v. Olesen became one of the first cases involving LGBT rights in the Supreme Court of the United States. The case called into question whether a gay magazine called “One: The Homosexual Magazine” violated obscenity laws due to its pro-LGBT content. Fortunately, the court ruled in favor of One, Inc, securing the LGBT community’s right to freedom of speech. This allowed the LGBT community to spread their message and movement across the country.
In 1986, in Bowers v. Hardwick, the Supreme Court upheld a Georgian law that prohibited sodomy between consenting adults. While same-sex sodomy was not specificallly targeted, this ruling had a disproporatate effect on the LGBT community. This ruling criminalized the LGBT community. Sodomy laws allowed for legal path of discrimination against LGBT Americans even when the Supreme Court ruled that states could not discriminate against the LGBT community based off disapproval. This ruling was not overturned until 2003, in Lawrence v. Texas, under the ruling that the state could not justify its violation of an individual’s personal or private life or liberty.
In 2015, the landmark case Obergefell v Hodges affirmed the fundamental right to marry, making same-sex marriage equal under the law. This meant that states were forced to legally rercognize same-sex marriages and marriages with transgender spouses This was not merely a symbolic victory. It came with important legal benefits. Legalizing same-sex marriage meant that LGBT couples could act as next of kin in medical emergencies, adopt children together, own property as married couples, and enjoy tax and health insurance benefits.
October 8th’s case came down to three cases: Georgia, Altitude Express v. Zarda, R.G. and G.R. Harris Funeral Homes v. EEOC, and Bostock v. Clayton County.
The first cases to be heard were Altitude Express v. Zarda and Bostock v. Clayton County. Donald Zarda, a former instructor for a skydiving company, and Gerald Bostock, a child-welfare-services coordinator in Clayton County, Georgia were both fired from their jobs for being gay. It was argued that discrimination against sexual orientation should be included in the modern interpretation of Title VII of the Civil Rights Act of 1964, which prohibits “employment discrimination based on race, color, religion, sex and national origin”. The logic behind this argument proposes that discrimination against sexual orientation is a form of sex discrimination, since Zarda and Bostock would not have been fired if they had been a different sex.
In R.G. and G.R. Harris Funeral Homes v. EEOC, the previous argument was expanded to include transgender people. The case concerned Aimee Stephens, a former funeral director at R.G. and G.R. Harris Funeral Homes, who was fired due to not dressing as a man after her gender reassignment. It was argued that this is also a form of sex discrimination, because had Stephens been born a female, she would not have been fired for wearing female clothing. In addition, it was argued that being fired for failing to conform to sex stereotypes was another violation of Title VII’s prohibition of sex discrimination.
We at the Lawyer’s Committee stand with the LGBT community and organizations such as the National Center for Transgender Equality and will continue to fight for equal justice and protection for LGBT employees under the law. As Kristen Clarke, our President & Executive Director, said: “Everyone deserves the right to work free from harassment and discrimination.”
These cases are still being decided by the justices. While the cases face an uphill battle, we can only hope that the Supreme Court will, again, fall on the side of progress and equality for all.
Cindy Chen is an undergraduate intern with the Stop Hate Project.