By Denise Brogan-Kator, Chief Policy Officer
Today’s decision by the Supreme Court of the United States (SCOTUS) in the case of Bostock v. Clayton County* held that discrimination in employment because a person is gay or transgender violates Title VII of the Civil Rights Act of 1964. This is a momentous decision and it has been a long time coming (see our discussion of the posture of these cases, here). The Court held what many of us in the movement for LGBTQ+ equality have long argued: that it is impossible to terminate someone because they are gay or transgender without taking the employee’s sex into consideration. And, the text of the law is clear. You may NOT terminate (or otherwise discriminate against) an employee if your reason for doing so is, at least in part, based on that person’s sex.
When I think about this case, I necessarily think back to my own story and my own advocacy for this result.
The first time I was fired for being transgender was in 1995. I had been the Vice President of Finance for the previous 5 years and had glowing letters of commendation from the company’s owner. And, when he fired me, he made it crystal clear that he was doing so because he learned that I wore women’s clothing when I was not at work (this was early in my transition and I had not yet announced that I was transitioning). The very next year, at my next employer, I was terminated as a business planning consultant when my employer discovered that I was prospecting for new clients through a gay business association. And, two years after that, as the Chief Financial Officer for a publicly-traded software company I was fired when I announced that I would be transitioning (very similar fact pattern to Aimee Stephens’ case).
That makes three times, in fairly rapid succession, that I was fired either for being gay or transgender. These firings impacted my life in horrible ways. Without going into the details, suffice it to say that I lost my home, my assets, and my marriage. And, I incurred crushing debt that eventually led to my bankruptcy. Because my actual work performance had been exemplary, I sought legal counsel in the hopes of some recourse but was told, in no uncertain terms, that there was no legal recourse. And, in the 1990s, that was how Title VII was understood.
In the years subsequent, I have lobbied Congress year after year to add sexual orientation and gender identity to the understanding of “sex” in the civil rights law. I recall once having to educate my Senator about the meaning of the word “transgender” only to have him recoil from me as if I were contagious or dangerous.
After becoming a lawyer and in my work at Family Equality, I have helped to draft amicus briefs for the Court to explain, in real person terms, the impact that such discrimination has on individuals and families, including in the case decided today. I have shared my own story in venues far and wide, including on the steps of the Supreme Court.
Underlying all of this was the inescapable logic that one cannot discriminate against a person because of their sexual orientation or gender identity without considering their sex. Today, SCOTUS affirms that logic:
“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
This opinion is too late for me and countless others who have suffered at the hands of bigotry and bias for all these decades. But, today, and henceforth, there is recourse. No longer can an employer simply get away with such discrimination without being held accountable.
As we celebrate today’s decision, let us remember that it is the culmination of decades of work by countless people who told their story, who advocated for change, who took cases that the law said they couldn’t win, and who refused to stand for it when the discrimination happened to them.
One such woman was Aimee Stephens. A valued and long-term employee, she was summarily terminated after she told her employer that she intended to transition from living as the man they believed her to be to the woman she knew herself to be. She could have gone quietly, but she did not. She fought back. Today’s decision is her victory. My biggest sorrow in this day is that Aimee Stephens didn’t live to see it.
Make no mistake. Our work is not done. I survived – even thrived – largely because I enjoy any number of unearned privileges. And, in that at least, I am rare. Employment discrimination against gay and transgender people is widespread. But, employment discrimination against transgender people who are also Black is crushing. Our nation has much to do to dismantle both legal and cultural systems of racism. Additionally, there are still critical gaps in our federal non-discrimination laws for LGBTQ people, despite this ruling.
So, while we celebrate today’s win, we also remember our past and recommit ourselves to an even better future by continuing our important work to ensure lived and legal equality for all of us.
*Together with No. 17–1623, Altitude Express, Inc., et al. v. Zarda et al., as Co-Independent Executors of the Estate of Zarda, on certiorari to the United States Court of Appeals for the Second Circuit, and No. 18– 107, R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., on certiorari to the United States Court of Appeals for the Sixth Circuit.
Featured Image: Ted Eytan / CC BY-SA-2.0