Bostock: A Welcome Respite in an Ongoing Battle

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Aimee Stephens was assigned a male sex at birth, but she’d known for most of her life she was female. Aimee was diagnosed with gender dysphoria, a condition caused by discomfort or dissonance with one’s birth-assigned gender. When hired by Harris Funeral Home, she presented as male. Six years later, ready to live her truth, she wrote a letter to the funeral home’s owner, explaining that she finally had “decided to become the person that [her] mind already is.” She was fired, simply for being who she was.

Stories like Aimee’s were on my mind as I testified in 2018 before the Ohio General Assembly in support of the Ohio Fairness Act. The bill was afforded another hearing earlier this year. If enacted, the law would add sexual orientation and gender identity and expression to the classes already protected under Ohio civil rights laws in employment and other areas. Such legislation is urgently needed because Ohio is one of the majority of states that does not protect LGBTQ individuals from discrimination in private and public employment. Until recently, federal law fared little better.

That’s all changed.

Aimee’s case was one of three consolidated cases the U.S. Supreme Court decided in Bostock v. Clayton County. Bostock holds that the prohibition against employment discrimination on the basis of sex proscribed by Title VII of the Civil Rights Act of 1964 covers LGBTQ employees.

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Bostock is momentous. It provides clarity to the confusing legal landscape LGBTQ employees encountered when grappling with workplace discrimination. It also comes at a time when LGBTQ individuals are experiencing retrenchment of civil rights protections. Moreover, its holding and rationale could potentially expand LGBTQ rights in other areas. Yet, while LGBTQ advocates celebrate this victory, Bostock is limited to employment, leaving a lot more to be done at the state and federal levels to secure full equality for LGBTQ individuals.

A Landscape of Uncertainty

One reason Bostock is momentous is because it extends employment protection where none existed or at best was uncertain. Currently, 22 states and the District of Columbia prohibit sexual orientation discrimination in private and government employment. All but one of those jurisdictions also protect employees on the basis of gender identity. Bills have repeatedly been introduced in Congress to protect LGBTQ employees from discrimination. Those efforts so far have failed. Some courts had interpreted Title VII or similar state laws to cover gay and/or transgender employees. But many others hadn’t. This landscape offered LGBTQ employees a patchwork of protection.

The experiences of the employees in the consolidated Bostock opinion are illustrative. Child welfare advocate Gerald Bostock worked for Clayton County in Georgia. He was fired after his employer learned that he had joined a gay softball league. Georgia law does not protect LGBTQ employees from discrimination. Bostock sought relief under Title VII, but the 11th Circuit affirmed circuit precedent holding that the statute does not bar employers from firing employees because they are gay.

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Skydiving instructor Donald Zarda worked in New York. He was fired shortly after telling a female customer that he was gay to help her relax prior to a tandem jump with him. Zarda sued under New York law, which prohibits sexual orientation employment discrimination. He also sued under Title VII, but that claim became actionable only after he convinced the Second Circuit sitting en banc to reverse circuit precedent.

Aimee Stephens worked in Michigan, where legislative efforts to amend that state’s civil rights law to add sexual orientation and gender identity thus far have failed. The Sixth Circuit, which heard her claim, held that Title VII protects employees from gender identity discrimination. It’s worth noting, however, that the court reached the opposite conclusion in an earlier case with regard to sexual orientation.

Bostock eliminates such conflicting results.

A Decision Grounded in Textualism

Title VII expressly prohibits discrimination because of sex. Bostock affirms long-standing precedent that an employer violates the statute if it “intentionally relies in part on an individual employee’s sex when deciding to discharge the employee,” or stated differently, “if changing the employee’s sex would have” altered the employer’s decision.

The Bostock Court had no difficulty applying this long-standing analysis to conclude that Title VII’s plain text bars an employer from firing someone “simply for being homosexual or transgender.” Such discrimination, the Court explained, constitutes sex discrimination because an employer necessarily takes an individual’s sex into account when acting on the basis of either of those two characteristics. For instance, an employer that discharges a man for being attracted to men violates Title VII if the employer would not also discharge a woman attracted to men. Likewise, an employer violates the statute if it fires an employee assigned a female sex at birth but who now identifies as male if it fails to treat similarly an employee assigned a male sex at birth who also now identifies as male. In both scenarios, but for the discharged employees’ sex, they would not have been fired. Title VII requires no more.

A Much Needed Win

Bostock is a victory for LGBTQ individuals, who have contended with federal, state and local efforts to roll back their civil rights. Recent events at the federal level demonstrate the point. The Obama administration generally interpreted civil rights statutes and policies favorable to LGBTQ individuals. The Trump administration has been overtly hostile. The current administration has curbed protections, particularly for transgender individuals, on such issues as the provision of health care, serving openly in the military and ensuring protection from discrimination in educational settings. Some of the rollback has to do with the administration’s interpretation of the term “sex”—the issue in Bostock. For instance, the Department of Health and Human Services recently reversed an Obama-era rule that had interpreted the prohibitions against sex discrimination in Section 1557 of the Affordable Care Act as encompassing gender identity.

But it’s not just administrative policies. The Department of Justice also has filed briefs in numerous courts opposing LGBTQ civil rights, including in the cases brought by Stephens, Zarda and Bostock, siding with the employers in each instance. This is so despite the fact that the Equal Employment Opportunity Commission (EEOC), the federal administrative agency that administers Title VII, initiated litigation on Aimee Stephens’s behalf in the federal district court. The EEOC was, in fact, the named plaintiff in the lawsuit. The administrations changed during the course of the litigation as did the DOJ’s support for LGBTQ rights. Against that backdrop, Bostock was a welcome surprise.

Bostock also comes five years after the Court recognized the right of same-sex couples to marry in Obergefell v. Hodges. Bostock makes Obergefell even more meaningful because employees who exercise their constitutional right to marry no longer have to fear being fired for doing so. Moreover, according to the Williams Institute, about 4.1 million LGBTQ workers live in states without explicit statutory nondiscrimination protections in employment. Provided they work for employers with 15 or more employees, LGBTQ individuals may now look to Title VII for relief.

The reach of Bostock also may extend beyond employment. In his dissent, Justice Samuel Alito opined that the Court’s holding “is virtually certain to have far-reaching consequences.” He noted that “[o]ver 100 federal statutes prohibit discrimination because of sex,” and he painstakingly lists them in Appendix C to his opinion. His point is well taken. Bostock potentially brings LGBTQ individuals within the scope of those statutes. It at least opens the door to the argument.

Yet, while there is room for celebration, there’s more to do.

Going Forward

While momentous, Bostock leaves several issues unresolved. For instance, in response to the employers’ argument that ruling in the employees’ favor “will sweep beyond Title VII,” the Court punted. It stated that no other statute referencing “sex” was before it, and without the “benefit of adversarial testing about the meaning of their terms,” it refused to “prejudge” the issue. Bostock’s potential conflict with religious employers was also left for another day. The employers argued that protecting LGBTQ employees under Title VII might force some employers to violate their religious convictions. While the Court stated that it was “deeply concerned with preserving the free exercise of religion,” it left those issues for future cases. The Court also stressed that it was not addressing questions about “bathrooms, locker rooms or anything else of that kind,” issues that have been of particular concern to transgender workers.

For these and other reasons, advocates should continue to push for LGBTQ specific legislation in Congress and in states, like Ohio, where none exist. Measures should extend beyond employment, encompassing housing, public accommodations, education and other areas. They also should address issues Bostock left on the table, including the scope of exemptions from non-discrimination mandates available to religious institutions.

In sum, there is much more work to do. The equality battle isn’t over for LGBTQ advocates. But for the moment, we celebrate.

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