Sex and the Supreme Court: It's Not Just About LGBTQ Workers

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October 2, 2019
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By Jennifer C. Pizer, Law and Policy Director, and Karen Loewy, Senior Counsel and Seniors Strategist.

As our colleagues Diana Flynn and Greg Nevins have previously explained, the Supreme Court will soon hear arguments in three cases with massive implications for LGBTQ people. Our entire movement, and everyone who cares about us, should have their eyes on DC.

These cases concern whether Title VII of the Civil Rights Act, the federal employment nondiscrimination law, protects LGBTQ people with its ban on discrimination “because of sex.” As our colleagues have explained, there is no coherent way to argue that employers’ mistreatment of workers based on their sexual orientation or gender identity is unrelated to perceptions and expectations based on each worker’s sex.

If a majority of the justices simply read and apply the literal words of Title VII, we will win. That result would confirm what majorities of Americans have long believed: that current federal law forbids discrimination against LGBTQ people. Finally having Supreme Court confirmation of that widespread understanding will have powerful deterrent and remedial effects on workplace dynamics. That will be huge, because most of us need a job to keep our lives on course – to pay rent, retain health insurance, and buy the basics. Many of us support loved ones, too. Workplace fairness can mean security for the entire family. So, it really is hard to overstate the importance of these cases. 

But, they’re even more important than that! Because there are similar sex discrimination protections in other federal laws covering housing, healthcare, credit, and education, we have been referencing the reasoning of the employment litigation victories to build protections in these other areas as well.

For example, we represented Tonya and Rachel Smith, a married same-sex couple with two small children. When looking for a new home, they visited a two-bedroom duplex in Gold Hill, Colorado that seemed perfect – affordable, outdoor space for playtime, and a good school nearby. After meeting the landlord, they believed they were all set. But then, the landlord said she would not rent to them because their “unique relationship” would affect her standing in the community. We sued on their behalf under the Fair Housing Act, among other laws. And in a national first, the federal court agreed that the discrimination was “because of sex.”

Next, consider what happened to Jionni Conforti, who needed a hysterectomy as part of his gender transition, and was planning to have it performed at St. Joseph’s Regional Medical Center in New Jersey. Word that the procedure related to Jionni’s gender identity reached the Catholic official with authority over the hospital and he promptly blocked the procedure based on religious doctrine, despite nondiscrimination rules that apply under the Affordable Care Act because the hospital receives federal funding. Lambda Legal is litigating on Jionni’s behalf, arguing that it was discrimination on the basis of sex to refuse this medically warranted care.

As one more example, meet Drew Adams. He was excelling in high school in St. Johns County, Florida but, like many students who are transgender, he was targeted when school authorities ordered him not to use the boys’ restrooms. Though Drew was recognized as the boy he is by his friends, family, community, and even the State of Florida, the school board policy separated him from his peers and marked him as inferior just because he’s transgender. Lambda Legal represented Drew and won a decisive victory against the school board following the first federal trial to conclude that this type of exclusionary bathroom policy is rooted in sex-based stereotypes and therefore discriminates on the basis of sex in violation of federal law. The school board has appealed.   

This sampling illustrates how we have deployed employment case successes to build precedent under other federal laws. Supreme Court rulings confirming our sex discrimination analysis would have tremendous implications for these other areas as well.

This is not to say those future cases would be automatic wins, or that one or more Supreme Court losses now would be a death knell for other litigation. There are important differences among the various laws; however, the similarities mean the stakes are even higher than the already enormous consequences for workplace protections.

The stakes are elevated even further because, while legal rights matter a lot, the Supreme Court’s pronouncements tend to signal acceptable behavior as a social matter, too. Witness the profound changes in attitudes post-marriage equality, even as intense minority voices still disagree. If the Court reads Title VII logically and confirms it protects LGBTQ workers, it will confirm resoundingly that anti-LGBTQ bias is wrong. That statement would be hugely influential. 

Likewise, if any of these cases go badly, the negative impacts would be dire. We would distinguish the Court’s reasoning for other cases, of course, but there would be a message that it’s perfectly legal under federal law to fire, refuse to hire, or otherwise abuse LGBTQ workers. Employment problems already prompt the most requests for help that we receive. One or more Court decisions stripping away our incomplete but essential protections in this area would be devastating – worsening poverty, health disparities, and marginalization for many in our communities. The collateral effects for our work in other areas also could be intensely damaging, depending on the Court’s reasoning.

The good news is that Congress can override bad Court interpretations of statutes, and the House has already passed a bill – the Equality Act – which was drafted to confirm the good court decisions up to this point and to make sexual orientation and gender identity coverage explicit and unmistakable. Not only that, but the bill expands coverage in two key areas where current federal protections are incomplete: the public accommodations law and the law preventing federal funding to subsidize discrimination. Both lack sex discrimination protection, and the public accommodations law has been far narrower than many state laws – covering restaurants, hotels and motels, but not retail stores, professional services and banks, and transportation services including trains, taxis, and airlines.

In other words, we urgently need the Equality Act to become law regardless of how the Supreme Court rules, because LGBTQ people need equality in all aspects of our lives. The House has already passed the bill. Senate Majority Leader Mitch McConnell must now be persuaded to set hearings, and more senators must be persuaded to give thumbs up. Marshalling that persuasion rests on all of us.

We need the public to understand how outrageous it would be if a Court majority were to ignore the words of the statute – with conservatives abandoning their “textualism” mantra – to strip away LGBTQ protections that have been recognized for years. If that happens, we will need massive public outrage to fuel even more massive public mobilization to insist that the Senate pass the Equality Act immediately and that it be greeted promptly by a friendly presidential pen.