As it stands, there are no federal protections against employment discrimination on the basis of sexual orientation or gender identity.
On Oct. 8, the U.S. Supreme Court heard arguments for three separate court cases involving anti-LGBTQIA+ discrimination in the workplace. The justices can either expand the meaning of the Civil Rights Act or render its meaning very narrow, but a ruling isn’t expected until next year.
Title VII of the 1964 Civil Rights Act “prohibits employment discrimination based on race, color, religion, sex and national origin.” The lack of language related to sexual orientation and gender means that if an employer does discriminate against an employee because of their sexual orientation or gender, it’s not illegal.
While the exclusion of LGBTQIA+ communities isn’t new, enthusiasm for legally restricting the definition of sex saw an upswing with the election of President Donald Trump.
The Trump administration has pushed to make the term “sex” binary and unchangeable, but gender and sex are two different things, and it’s harmful to conflate them. Trump’s interpretation isn’t just small minded, it’s dangerous. Pressing this archaic equation of body parts and identity means LGBTQIA+ folks are at risk
of losing labor rights. If gender identity isn’t protected, there are no safeguards to protect trans and gender queer individuals from discrimination.
The only recent major victory for the LGBTQIA+ community to come from the U.S. Supreme Court was the legalization of marriage equality in June 2015. Despite being a big step for the U.S., marriage equality only means so much if people aren’t protected from employment discrimination. LGBTQIA+ legislation doesn’t go far enough to protect and support people.
In Zarda v. Altitude Express, Bostock v. Clayton County and Harris Funeral Homes v. EEOC, opponents argued that religious freedom gives employers the right to fire someone because of that person’s sexuality and gender. Hiding behind a minuscule portion of a religious text to justify hatred for other human beings is ridiculous.
Bigotry is a personal choice, but the Supreme Court has no place enabling bigots to act on their prejudices.
If the Supreme Court rules that the Civil Rights Act doesn’t include protections on the basis of sexual orientation and gender, the decision could jeopardize other civil rights protections against sex stereotyping and sexual harassment.
If the court rules against the plaintiffs, ex-employees fired over their gender or sexuality would be left without a legal option.
If the ruling goes the other way, the decision could provide employees with legal recourse, hopefully dissuading employers from discriminating in the first place. The ruling would guarantee protections for LGBTQIA+ folks across the U.S. regardless of state laws.
We need to protect members of the LGBTQIA+ community and speak out against discrimination now. If these cases don’t change anything, who knows what it will take to make the Supreme Court rule employment discrimination as illegal.
Now more than ever, supporters of the LGBTQIA+ community need to use their privilege to speak up when they hear someone making xenophobic comments, not just when other people are around to hold them accountable. Use your privilege when underrepresented voices aren’t around, and wonder why those voices aren’t present. Until the Supreme Court makes a decision, people can join the American Civil Liberties Union (ACLU) in helping the plaintiffs and support LGBTQIA+ folks in their lives.