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Statement on Bostock

Promoting the fair and just treatment of all people under the law regardless of sexual orientation or gender identity.

OGALLA. The LGBT Bar Association of Oregon.Oregon Trans Law Caucus

OGALLA: the LGBT Bar Association of Oregon applauds the United States Supreme Court’s decision, released yesterday, holding that gay, lesbian, bisexual, and transgender people are protected from discrimination in employment under Title VII of the Civil Rights Act of 1968. While it is difficult to appreciate the full significance of the consolidated cases in Bostock v. Clayton County at this time, we do not doubt that this decision will stand in history alongside Lawrence v. Texas, 539 U.S. 558 (2003) and Obergefell v. Hodges, 576 U.S. 644 (2015) as seminal moments in the movement for LGBT rights, where the struggle of generations finally won recognition and protection under the law, and from which future generations of LGBT Americans can envision a more hopeful future.

This decision has special import for LGBT people living in the 29 states that lacked protection from employment discrimination on account of sexual orientation or transgender status. Employees in those states now gain new practical tools to challenge injustice in their workplaces, and employers now receive clear direction to establish and implement policy that respects the rights of LGBT workers. Further, there is no doubt that this decision will have ripple effects far beyond the employment context. On Friday, June 12, the Department of Health and Human Services released final regulations retracting Obama-era rules that defined anti- discrimination provisions in the Affordable Care Act to bar discrimination on the basis of sexual orientation and gender identity. These Trump Administration rules, which would likely leave many LGBT people without protection from discrimination in healthcare, will be swiftly challenged under this new Supreme Court precedent. Protections in other areas, from education to housing policy to incarceration policy, will be profoundly affected by this ruling as well.

The majority opinion in Bostock is noteworthy for the clarity of its analysis, and its commitment to a textualist interpretation of the law. Debates over LGBT rights are so often pulled sideways into intrusive and obfuscatory arguments about the way LGBT people live their lives. We are often exhorted to debate the metaphysical nature of chromosomes, to question the immutability of sexuality, or to linger on invasive questions of bathroom practices. Employers argued here that, all else notwithstanding, the drafters of the Civil Rights Act could never have actually intended to protect LGBT people from discrimination. Justice Gorsuch’s majority opinion cuts through those distractions to reach the essential issue: Under the plain text of Title VII, “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.”

As the Court rightly notes, “sex” is not conceptually coterminous with sexual orientation or transgender status; however, the concepts are inextricably related such that discrimination on account of those bases is inherently discrimination on account of sex. This simple, fundamental conclusion reframes the question and the broader debate. Instead of viewing these cases as an extension of rights, the proper question is this: why should gay, lesbian, bisexual and transgender people not enjoy the same protection from discrimination on account of sex that all other people enjoy? Why should LGBT people be exempted from these general principles? The Court’s decision then is, above all else, a reaffirmation of the principle that all people should be treated equally under the law, without exception.

We are heartened as well to see that this was a 6-3 decision with a majority opinion authored by Justice Gorsuch, and that it was joined by Chief Justice Roberts, alongside Justices Breyer, Ginsburg, Kagan, and Sotomayor. This demonstrates broad support across what some would consider to be ideological lines, and it reflects a simple truth: respect for the equal rights of gay, lesbian, bisexual, and transgender people is not, or should not be, a question of politics. LGBT people are everywhere. The LGBT community encompasses people of every race, creed, religion, cultural background, and national origin. LGBT people live in every state, every community, and our communities are stronger when LGBT people are free to live openly and without fear of discrimination.

As we celebrate this ruling, it is bittersweet to note that lead plaintiff Aimee Stephens did not live to see her victory. Ms. Stephens entered hospice care while awaiting this ruling, and she passed away on May 12 of this year still waiting for justice. Plaintiff Donald Zarda also passed away before this decision. We express our eternal gratitude to Ms. Stephens, Mr. Zarda, Mr. Bostock, and their families for their commitment to the fight for justice, as we recognize all those whose struggle has built to this moment.

We must also acknowledge that decisions like this are more a beginning than an end. Here in Oregon, we have enjoyed legal protection for LGBT people in many areas of life, including employment, for 13 years. Even so, and notwithstanding our legal protections, too many in our community continue to face significant discrimination and structural barriers. Transgender people, particularly transgender women of color, experience unacceptable levels of unemployment and underemployment. Coming out as transgender on the job too often means a quick exit from employment. Finding a job in the first place remains a struggle, and discrimination on the job remains a challenge. The same is true for many other aspects of life including housing and medical care. In all of these areas, Black and Indigenous transgender people continue to face particular hardships and challenges.

We must acknowledge that this decision comes down in the middle of ongoing protests following the murder of George Floyd by Minneapolis police. For more than two weeks, protesters have taken to the streets to demand recognition that Black Lives Matter, and to demand that our society finally honor that simple value with systemic change. On Sunday, June 14, about 15,000 protesters gathered in Brooklyn to specifically demand recognition that Black Trans Lives Matter. This protest was inspired by the murder of Black trans women Riah Milton and Dominique Fells in the week prior, as well as the recent murders of Nina Pop, Monika Diamond, and the dozens of other Black trans women murdered in this country every year in a horrifying pattern of violence. Trans advocates also marched for Tony McDade, a Black trans man killed by police in Florida after the murder of George Floyd. McDade’s death provided a cruel demonstration that Black trans men, as men, face the same threat of police and institutional violence as other Black men.

We are currently celebrating Pride Month, and LGBT people often note that the first pride was a riot. We credit Black trans women with inciting the rebellion that founded the struggle for LGBT liberation. As we do so, we must acknowledge that for many, that struggle never ended. For many, that struggle has hardly changed. As we rightly celebrate this victory in the fight for LGBT rights, we must redouble our commitment to fight both individual and systemic injustice, and we must recognize that our work is not done until Black trans people truly experience equal rights and equal justice, too.

OGALLA: The LGBT Bar Association of Oregon