Decades-old Civil Rights law addressing employer discrimination expands its understanding of sexual orientation and gender, but might open the door for other discriminatory workplace practices.
Last week the US Supreme Court ruled in a 6-3 decision that the 1964 Civil Rights Act will protect gay, lesbian, and transgender employees from discrimination based on sex.
The ACLU posted, “This is the first transgender rights case to be heard by SCOTUS. This landmark decision is a win for all of us, but especially for trans people who have fought for years for their rights to be treated with dignity and respect.”
One of the major considerations for this ruling is that even though the 50-year-old Civil Rights act did not consider sexual orientation or gender status before, now employees who fall under identities outside of the traditional Anglo-Christian, American binary are covered in this important piece of legislation.
“Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees, but the limits of the drafters’ imagination supply no reason to ignore the law’s demands” wrote Justice Neil Gorsuch in the majority opinion. Gorsuch is President Donald Trump’s first appointee to the court.
Justice Sotomayor, who was also part of the majority opinion, opposed the idea that the Civil Rights bill excluded sexual orientation or gender identity. “Regardless of what others may have thought over time, it’s very clear that what’s happening fits those words. At what point do we say we have to step in?”
A gesture or some meat on the bones
The decision comes after three cases went to the Supreme Court claiming that members of the LGBTQ community—two gay men and one transgender person—were fired due to their identities. The cases used Title VII of the Civil Rights Act of 1964 for their main arguments. In this section it “prohibits employment discrimination based on race, color, religion, sex and national origin.”
Sara Angevine, an assistant professor of political science at Whittier College, told Ark Republic that the decision “can change the lives of queer folk in states where” they are less “proactive in protecting LGBT rights,” but “the identity language used in the decision, such as homosexual, illustrates how we, as a greater community, still wrestle with boxing in the fluidity of sexuality and gender identity.”
While Prof. Angevine calls the decision a “neo-liberation” ruling that encourages “capitalism for all,” the California professor concedes that the decision, “is still very encouraging and illustrates how formal equality is still the objective of work places’ aspiring meritocracy despite institutional marginalization.”
On the other hand, Prof. Angevine adds that the “interpretation of the term ‘sex’ in the Civil Rights Act was extended to address this fluidity [but are the same] . . . words that attempt to anchor us, also set us free.”
The reservations expressed by Prof. Angevine are echoed from others who said workplace protections from the initial passage of Civil Rights Act ushered in a sentiment that citizenship meant full participation in free markets, but did very little to address systemic discriminatory practices across all US institutions. Research by Traci Parker shows how the Civil Rights Movement pushed more so for Black consumerism and integration for Black middle class than substantive change and equity.
Since 1964, workplace protections and labor unions have eroded over time. In fact, the wealth gap, and in particular, the racial and gender wealth gap have widened. Included in these disparities are the pay inequalities for gay and transgender people, and especially who are BIPOC.
Applying the decision might mean unintended consequences
With the decision, those who were banned from the military for their transgender status, hope that this will be the needed ammunition to challenge Donald Trump’s 2017 decision saying most transgender people could no longer serve. Since, trans military service people must hide their identities, while those who sought to join have changed their careers.
While the decision is a huge leap for gender identity and non-binary orientation, some legal experts say there are concerning loopholes. The decision to the Civil Rights legislation primes arguments for religious freedom that can be used by organizations, employers and businesses to include certain exemptions that limit inclusion and certain hires based on beliefs. Most specifically, organizations and employers who can use religious freedom to discriminate.
Like the case of Kentucky clerk, Kimberly Davis, who was sued in 2015 for refusing to issue marriage licenses to same-sex couples due to her religious beliefs. Then, Davis lost the suit as it was found she violated the civil liberties Kentucky residents. Today, that might be different. American Civil Liberties Union lawyer James Esseks said to Reuters that the recent decision by justices can create “ways it could come out that would mean there’s a constitutional right to discriminate.”
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