The twilight of LGBT discrimination

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Rep. Howard W. Smith authored the provision outlawing sex discrimination in employment

The June 15 Supreme Court decision in Bostock v. Clayton County (Georgia) has a sweeping logic that, if applied to other areas of law, will mean the end of legal discrimination against people who identify as LGBTQ.

Justice Neil Gorsuch, in his 6-3 opinion, applies a plain-text reading to the employment title of the 1964 Civil Rights Act: Identifying as LGBT arises out of sex, and employers can’t discriminate on the basis of sex. Disparate treatment on account of any condition of sex is illegal. Disparate treatment of an individual, even if as groups an employer treats men and women equally, is illegal. An employer can’t engage in disparate treatment even if it’s only one of multiple reasons cited for that treatment.

All Justice Gorsuch had to do, he wrote, was read the words. The 1964 Civil Rights Act, written largely by the Justice Department under Attorney General Robert Kennedy, bars discrimination primarily applying to “race, color, religion, or national origin,” in particular in voting; or in the use of public accommodations, government facilities (on any level) or public schools; or in any program or activity receiving federal funding. The Kennedy proposal responded to the confrontations with Southern states in the 10 years following Brown v. Board and the weaknesses of the 1957 Civil Rights Act.

But Title VII alone also bars discrimination in employment on account of sex. The law makes it unlawful:

“. . . for an employer to fail or refuse to hire or to 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.”

“Sex” was famously proposed by House Rules Committee Chairman Howard W. Smith. (The Rules Committee is where bills are assigned a procedure governing floor debate; the committee approved the addition as a floor amendment.) Historians aren’t clear why Smith added it, though some believe it was an effort to sabotage the bill; Smith, a Virginian in the House since 1931, was a segregationist. But the politics were complicated; Smith was a long-time proponent of the Equal Rights Amendment and fairness for (white) women, and the AFL-CIO preferred a leg up for its members – men.

In Bostock, the Trump administration joined three defendants in the consolidated case, employers who had fired two gay men and another man who, after six years as an employee, announced his intention to live as a woman. The Justice Department argued that “sex” didn’t apply to orientation or identity. Or, as Gorsuch summarized in his opinion, something other than “status as either male or female (as) determined by reproductive biology.” Gorsuch swept away their distinctions and arguments over 50-year-old interpretations of “discriminate” and “sex”: “An employer who fires an individual merely for being gay or transgender violates Title VII.”

Trump officials have written or rewritten agency rules to allow discrimination against LGBT persons in a range of areas. Last week the administration finalized a rule that repealed an Obama administration prohibition, pursuant to the Affordable Care Act, on discrimination in the provision of health care.

If the court’s opinion is applied to these other areas, then all those efforts will fail sooner than they would under a Biden administration, or any other.


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