Until today, LGBTQ+ Tennesseans had no legal protections from sexual orientation or gender discrimination in employment. That is no longer the case, nationwide! In a surprise for many advocates, the Supreme Court, which is currently a conservative majority (5-4), ruled (6-3) this morning, Monday, June 15, 2020, that employers cannot fire employees based on their sexual orientation or gender identity under Title VII of the Civil Rights Act of 1964. The decision in the case, “BOSTOCK v. CLAYTON COUNTY, GEORGIA,” was written by one of the Court’s conservative justices, Neil Gorsuch, who has closely aligned with the judicial philosophy of Antonin Scalia, but who was mentored by Anthony Kennedy.
In short, the court ruled: “An employer who fires an individual merely for being gay or
transgender violates Title VII. (a) Title VII makes it ‘unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual . . . because of such individual’s race, color, religion, sex, or national origin.’ 42 U. S. C. §2000e–2(a)(1).”
In the conclusion of the majority opinion, Gorsuch writes: “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.”
Given it’s authorship, the ruling is clear and profound. “This opinion is huge, as big as winning marriage equality,” said Abby Rubenfeld, a Nashville-based attorney who was part of the legal team arguing marriage equality before SCOTUS, and who played an integral role in SCOTUS invalidating Sodomy laws. “That Justice Gorsuch, appointed by Trump and being ultra-conservative, wrote the amazing opinion is even more huge. He states what many of us saw as obvious, but that he too sees it as obvious will make a dramatic difference in the lives of LGBTQ+ people. This likely means that the Friday decision to discriminate against trans people in health care is a prohibited act. Today is a great day during a really difficult time!”
Effectively, this ruling extends protections for LGBTQ+ workers across the United States. In states like Tennessee which explicitly rejected such protections, this is a watershed. As Christopher Sanders, executive director of the Tennessee Equality Project (TEP), said, “This decision is incredibly important for LGBTQ people in Tennessee where we had no employment protections unless an individual employer decided to include them. TEP and other LGBTQ organizations in our state have regularly received calls over the years from people who have been fired or not hired because of their sexual orientation or gender identity and until now there has been no good remedy for them. This decision gives us good momentum for building more protections in Tennessee.”
Unfortunately, as Sanders points out, there is still much room for work, but it may affect the focus: “Many of the discriminatory bills in Tennessee are in the areas of education and health care, so the ruling would not immediately stop those bills. We will still have to fight against attacks on transgender youth. This ruling still doesn’t ban conversion therapy and it doesn’t immediately affect many areas of LGBTQ rights like housing.”
Further, Sanders expects some states may try to work around the requirement, and Tennessee will likely be among those. However, he’s hopeful. “I can also imagine far Right think tanks would work on ways for states to try to get around the ruling so we may see deviously creative state legislation next year. But overall the ruling gives us all more power to fight back.”
UPDATED TO ADD QUOTE FROM ABBY RUBENFELD.
Check back at O&AN for updates on the local impact of this ruling