Okay, I wrote the first draft of this post back in June of 2020. I didn't post it then because I was in the middle of making some technical changes to this blog that ended up taking a lot longer than I thought they would. And then I kinda forgot about this post for a while because 2020 was a lot. But I decided to post this now, because this post is about some good news that happened in 2020, and dammit, in a crappy year like 2020, I figured we could use all the good news we can get.
So here's the original post, with a few edits to make it more current:
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Okay, so lemme get this straight. The week of June 15th was a good week for LGBTQ people? And we can thank the Supreme Court for that? Are you sure this isn't just some crazy dream? Because this is super weird.
It's weird because the Supreme Court has a conservative majority. (And with Barrett on the Court, it's a supermajority.) That means that there are more conservatives than liberals on the Supreme Court right now. And that is true partly because Trump has been able to nominate three people to the Supreme Court. THREE!
So let's talk about the gay rights case from the week of June 15th. It's called Bostock v. Clayton County. The main holding of the case is that LGBTQ people can't be fired from their jobs just for being LGBTQ. And yes, before this decision was handed down, there were many states in America where it was perfectly legal for your boss to fire you if they found out that you were LGBTQ. Which really sucks, right? So it's pretty great that the Supreme Court said that it is not legal to do this anymore. It's just surprising, because of the whole conservative majority thing.
You may have heard Trump supporters say things like, "Well, I may not like everything that he tweets, but at least Trump has appointed some really conservative people to the Supreme Court, and to the federal courts." For a Trump supporter, having a really conservative person appointed to the Supreme Court, or other federal courts - which are all life time appointments - is good. That means that long after the president's term is over,
the Supreme Court justices and federal judges he appointed are still working.
And when a president appoints a really conservative person to these positions, they do so because they believe that these people will do things like work to defeat abortion rights, deny rights to LGBTQ people, allow people the "religious freedom" to discriminate against LGBTQ people, defend corporations, defend a broad interpretation of the Second Amendment, and work against rights for immigrants.
So when the people you appoint DON'T do those things, the rest of us are surprised. (Trump was also surprised. And mad, because he can't fire anyone on the Supreme Court.)
Okay, so in the rest of this blog post, I'm going to do two things. First, I'm going to tell you what the Court said in this case. Second, I'm going to tell you the two reasons why this opinion pisses off conservatives so much.
1. What the Court Said
The people who were suing said that Title VII of the Civil Rights Act was violated when they were fired from their jobs for being LGBTQ. So let's start with the text of the law. Title VII of the Civil Rights Act says that it is, "unlawful. . . for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
Of course, for this case, "sex" is the only term on the list that matters. And the majority opinion says that it is unlawful to discriminate against LGBTQ people because of their sex.
But how can that be? - you may ask. Because, as the Court explains, discrimination on the basis of sex is always a two-step process. Employers don't refuse to hire or fire a worker simply for being male or female. The worker suffers discrimination for being male or female, plus some extra factor.
The Court talked about three Title VII cases where the worker had suffered discrimination on the basis of their sex, but also some other thing.
The first one was a case called Phillips v. Martin Marietta Corporation, which was decided in 1971. In this case, the Martin Marietta Corporation had a policy of not hiring women who had young children. But the company was totally fine with hiring men who had young children. The Court said that this policy violated Title VII, because the company was discriminating against workers on the basis of sex. Sex wasn't the only reason for the discrimination - the women workers also needed to have small children. But it was still discrimination on the basis of sex because men with young children were hired, but women with young children were not hired.
Another case is called Los Angeles Department of Water and Power v. Manhart. This case was decided in 1978. In this case, the Los Angeles Department of Water and Power made women employees pay more money into the company's retirement fund than the male employees. The DWP said that women lived longer than men, and they would need to use the fund for a longer time, so it was only fair that they had to pay more money into the fund. The Court said this policy violated Title VII because it discriminated on the basis of sex. Now again, it was sex and something else - how long members of each sex tend to live - but the workers' sex was a motivating factor, so the Court said the DWP could not do that any more.
In 1991, Congress amended Title VII to make it clear that an employer can get in trouble for violating the law if sex is a motivating factor for treating an employee badly. Congress was saying they agreed with the Court - employers don't discriminate against employees just because they are male or female. It's because they're male or female, plus another reason. Congress was saying yeah, discrimination on the basis of sex always was a two-step process, and it was always going to be a two-step process.
The last case discussed by the majority opinion was a case called Oncale v. Sandowner Offshore Services, Inc. This case was decided in 1998. In this case, a bunch of guys worked on an oil rig that was out in the ocean. Oncale was being sexually harassed by the other guys on the rig. And the harassment was brutal. The abusers didn't just say terrible things to Oncale. They also sodomized him with a bar of soap.
The Court held that even though male-on-male sexual harassment was not the "principal evil" that was probably expected by the people who wrote Title VII, it was still discrimination on the basis of sex. (The "principal evil" was probably a situation where a boss man wants a woman employee to have sex with him, but she says no. And then he fires her.)
The Oncale case was a unanimous decision, which is pretty rare for the Court, and its decision was written by Justice Antonin Scalia. The Scalia thing is going to figure in to why this decision makes conservatives so mad, so more on that later.
So the Court in Bostock said that, much like these three earlier cases, the plaintiffs in this case had suffered discrimination on the basis of sex, and Title VII had been violated.
The Court said, "[a]n 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." So again, sex is a motivating factor, but in combination with something else.
As the Court explained, an employer could have two employees, both of whom are men. One of the men is sexually attracted to women, and the other is sexually attracted to men. Sex is a motivating factor for firing a gay man because it is in combination with another factor: his being attracted to men. So the two-step process for determining discrimination on the basis of sex has been used in this situation, too.
In the case of transgender people, the reasoning is similar. An employer has two employees. Both are women. One of them identifies as a woman in alignment with the genitals she had at birth. The other identifies as a woman, but that self-identification does not align with the sexual organs she had at birth. So the two-step process is used here also. If you fire the woman who is trans, but allow the cis-gendered woman to keep her job, you have discriminated against the trans woman on the basis of sex. Sex, in combination with another factor - her trans status - led to the illegal discrimination on the basis of sex.
2. So Why are Conservatives so Mad About this Ruling? There are two Reasons:
Reason One:
Reason one is pretty typical for a conservative person when they think a Supreme Court decision is liberal. Conservatives like to call it, "legislating from the bench", which is a fancy way of saying that the Supreme Court is passing a new law by issuing a decision. The dissenters, Alito, Thomas, and Kavanaugh, all griped about how the Supreme Court should not read Title VII to give protections to LGBTQ people because that was not what the people who wrote the law had in mind.
The dissenters also pointed out that Congress has tried several times to add LGBTQ people to the list of protected categories in Title VII, but each time, they didn't have enough votes to do it. But this isn't the Supreme Court's problem - it's Congress' problem. And they think the only legitimate way to resolve this problem and give LGBTQ people protections in the workplace if if Congress does it.
Reason Two:
Reason 2 is all about the late Justice Scalia. Scalia was a Supreme Court justice who was really conservative, just like Justice Thomas. They were like two peas in a pod, those two. (But not in a gay way.) But since Scalia died in February of 2016, he's become more like a martyr to his cause. (Though it's not like anyone shot him for his decisions. He died of natural causes.)
And Scalia wrote the decision in Oncale v. Sundowner Offshore Services, that case about male-on-male sexual harassment. In it, Scalia said that while male-on-male sexual harassment was probably not the "principal evil" that the lawmakers had in mind when they made it was illegal to discriminate in the workplace on the basis of sex, this plaintiff was still protected by Title VII because he had suffered workplace sex discrimination even though he was a dude being sexually harassed by other dudes.
Using Scalia's opinion from Oncale really got under the dissenters' skin. It was clear from their writing that they were super mad that anyone would dare use the words of their late great conservative buddy to grant more rights to LGBTQ people. The dissenters angrily defended Scalia as a true conservative, an originalist, and a dude who did not want to advance the gay agenda for full equality under the law. And I think they were embarrassed that Scalia wrote the opinion in Oncale, which really does support the outcome that the Court gave in this case.
I mean, even Scalia said that it was okay to read Title VII in a way that protected Oncale, and Scalia admitted that Oncale was in a situation that the people who wrote Title VII may not have thought of. So if Title VII protects someone like Oncale, then it's not a big jump to say that it also protects LGBTQ workers. They're just another category of workers that may not have been thought of at the time Title VII was written.
Frankly, I'm surprised that Scalia wrote the opinion in Oncale, given the homosexual overtones of the male-on-male sexual harassment that case was about. And since the case was decided unanimously, Scalia could have written the decision, but left his name off of it, thus making it a per curiam decision. "Per curiam" is a fancy way of saying, "Look, we all agree to the outcome of this case, but none of us wants to put our name on it, because it's too controversial, and we're wusses." Scalia had that option, but didn't use it. And I don't know why. So here we are.
So that wraps it up for this post. Stay tuned for more. In the meantime, please wash your hands, wear a mask, and for God's sake, don't go to any gatherings with Kirk Cameron!
And Happy New Year, everybody! 2020 really sucked. Let's hope that 2021 sucks a whole lot less.
