“If you don’t know what is happening on October 8th, I urge you to find out... It will be one of the biggest days in LGBTQ legal history and we have a lot to do to prepare. Our fight is …
“If you don’t know what is happening on October 8th, I urge you to find out... It will be one of the biggest days in LGBTQ legal history and we have a lot to do to prepare. Our fight is at SCOTUS. Our lives on the line. Don’t look away.”
— Chase Strangio, ACLU attorney
I have to admit, when I heard that the Supreme Court was going to hear this grouping of cases, all I wanted to do was look away. In case you do not already know, the court will be determining the parameters of Title VII of the Civil Rights Act’s prohibition of employment discrimination based on sex. I genuinely fear that the court, which could potentially overrule Roe v. Wade, is probably not the court that will interpret Title VII’s prohibition on sex discrimination to include discrimination based on sexual orientation and gender identity… even if they patently should.
Unfortunately, look away I cannot—and neither can you. People’s livelihoods stand in the balance. Though some states provide protections against employment discrimination based on sexual orientation and gender identity, the majority do not—PA included.
That said, is there anything we can do other than just be vigilant and gird our loins? Perhaps. Long before the upcoming oral arguments, opposing sides for each of the three consolidated cases submitted written arguments to the Supreme Court in the form of briefs. In addition, many outside parties submitted amicus (“friend-of-the-court”) briefs, discussing the merits of the cases and how the court’s decision will impact their lives or the lives of their members. You can do the same. Have you or someone you know experienced employment discrimination because of your sexual orientation or gender identity? Tell everyone how the Supreme Court’s decision could affect your life or the lives of your loved ones.
Even after the Supreme Court hears the oral arguments for these cases, months will pass before they issue an opinion. The Supreme Court may not be swayed by public opinion polls, but the more stories of struggle they are confronted with, the more likely they may be swayed by you. Supreme Court justices are people too.
More important than just your story, you should impress upon anyone listening the true meaning of sex discrimination. Title VII does not expressly protect against discrimination based on “sexual orientation” or “gender identity,” nor does it need to. Many, however, will question whether a prohibition on sex discrimination should protect someone who is gay or trans.
I am male who is attracted to other males. If I am fired because my employer feels that males should only couple with females, then I am discriminated against on the basis of sex. The same logic naturally applies to someone who is trans. Were I born a woman in a male’s body—which, by the way, is medically recognized—and my employer fires me because I do not conform with her expectations of how someone born with a penis should dress and behave, then she has discriminated against me on the basis of sex. An adverse employment decision based on sex stereotypes is sex discrimination. Period.
Finally, take hope in this. You, not the court, are the ultimate arbiter of Title VII. Title VII is a statute, which means that if you do not agree with the Supreme Court’s interpretation of its words, you simply change the words. A statute is amended in the same way it’s created, with the support of a majority of Congress and the president. To amend a statute is by no means an easy task but is certainly doable. If the Supreme Court decides sex discrimination does not encompass discrimination based on sexual orientation or gender identity, then we argue before the court of public opinion.
The goal now becomes spelling it out in black and white: adding the words “sexual orientation” and “gender identity” to Title VII’s prohibited forms of employment discrimination. The official briefs for these cases will be discarded and your stories will become more important than ever as will your knowledge of what it means to experience sex discrimination.
Don’t let anyone convince you democracy in America is dead. Call and write your congress person and your senators. Write to the president. Mobilize. Vote! The fight’s not over. We’ll battle on.
Steven Teague is a board member with the TriVersity Center for Gender and Sexual Diversity, an organization whose mission is to support and enhance the lives of the LGBTQ community in and around the TriState region. He is a licensed attorney in the state of New York and currently resides in Milford, PA with his husband of three years, Richard.