Given the pandemic and the protests of recent months, it is perhaps unsurprising that the media have taken little notice of what is arguably the greatest legal victory for civil rights in decades. On June 15, 2020, in Bostock v. Clayton County, the U.S. Supreme Court held that discrimination against employees because they are gay or transgender violates Title VII of the Civil Rights Act of 1964, the federal employment discrimination law.
The Bostock case involved three distinctly unlucky individuals (Schulman, 2020). Gerald Bostock served for a decade as a child-welfare coordinator at a juvenile court program in Georgia; after colleagues at work learned that he was participating in a gay softball league, he was fired for “conduct unbecoming” a county employee. Donald Zarda, a skydiving instructor in New York, was fired from his job after reassuring a female student (who told him she was nervous being “strapped to a really sexy guy”) that she needn’t worry because he was “100% gay.” Aimee Stephens, who presented as male when she began working at a funeral home in Michigan, was fired after she revealed her intention to present as a woman. The three plaintiffs sued in separate courts. (The Equal Employment Opportunity Commission filed a lawsuit on Stephens’ behalf.) The lower courts sided with Zarda and the EEOC but not with Bostock.
When the Supreme Court accepted all three cases for review in 2019, it was considered a bad omen by the left, in light of the recent retirement of Justice Anthony Kennedy — the most influential, if unlikely, champion of gay rights in the U.S. over the past quarter century — and the installment of Justice Brett Kavanaugh, a conservative famously accused of sexual assault during his confirmation hearing.
The Supreme Court and the meaning of “sex”
Title VII is a federal law protecting against discrimination in employment based on race, color, national origin, religion, and — the focus of the Bostock case — “sex.” In recent years, a growing (though still small) number of opinions by the EEOC and other courts have held that Title VII extends to discrimination based on sexual orientation and gender identity or transgender status.
Likewise, the employees in Bostock argued that, as employees terminated because of their sexual orientation or transgender status, they were victims of sex discrimination under Title VII. Their reasoning went something like this: If an employer fires Adam but not Brenda because of their common attraction to Craig, the only difference between Adam and Brenda is their sex; therefore, an employer’s favoring Brenda (who is straight) over Adam (who is gay) amounts to sex discrimination. Similarly, if an employer fires Taylor, who was identified as male at birth but who currently identifies as female, but not Susan, who has always maintained her identity as female, the only distinction between Taylor and Susan is their identified sex at birth. Therefore, the employer’s favoring Susan (who is cisgender) over Taylor (who is transgender) is sex discrimination.
Writing for the majority, Justice Neal Gorsuch followed this trail of logic to hold that “[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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” The expansive nature of this ruling was a surprise to many, especially coming from Gorsuch, a staunch conservative. (The SCOTUSblog offered a frenzy of commentary on how the legal argument in Bostock miraculously aligned with Gorsuch’s conservative analytical approach.)
Why Bostock is historic
Why is Bostock such a big deal? First, consider its scope. The ruling applies to nearly every employer with 15 or more employees. (In 2017, about 77% of Americans were employed in workplaces with 20 or more employees.) Therefore, the vast majority of working adults in the U.S. are at least indirectly affected by Bostock.
Before Bostock, it was perfectly legal in the majority of states to fire employees because they were gay or transgender. As of June 2020, only 21 states and the District of Columbia had enacted state laws that fully protected employees from sexual orientation and gender identity discrimination in the public and private sectors. Federal legislation protecting LGBTQ employees from discrimination had languished in Congress since 1994. And while the EEOC had taken a stand in recent years that such discrimination was prohibited under Title VII, its decisions are not binding on courts. Therefore, employers in many regions of the country perceived they had discretion not to follow the EEOC’s lead. After Bostock, they have no choice but to do so.
Bostock is the latest and most far-reaching in a string of pro-gay rights opinions issued by the Supreme Court in the last quarter century. These opinions — all penned by Justice Kennedy — include Romer v. Evans (1996) (invalidating state laws that banned municipalities from passing measures designed to protect lesbian and gay people); Lawrence v. Texas (2003) (invalidating antigay sodomy laws); United States v. Windsor (2012) (striking down the antigay Defense of Marriage Act), and Obergefell v. Hodges (2015) (establishing a federal right of same-sex marriage). While each will go down as epic moments in LGBTQ-rights history, Bostock is unique in that it addressed both gay and transgender rights. Bostock is the first Court decision to affirm transgender rights.
The ruling newly protects the nearly four million LGBTQ workers who live in states that did not previously protect them from employment discrimination (Conron & Goldberg, 2020). It may also represent a seismic cultural shift for future generations of LGBTQ workers, including educators.
A victory for LGBTQ educators
After Bostock, federal law prohibits discrimination against LGBTQ employees in nearly all public, charter, and private schools (although religious schools may be exempt). This is especially notable in light of the nation’s history of discrimination against LGBTQ teachers. For instance, during the Lavender Scare of the Cold War era, thousands of gay people, including educators, were branded as sexual perverts and communist sympathizers and removed from federal and state government service. The firing of gay teachers persisted even as McCarthyism waned. In Florida, the practice lasted well into the 1970s (Graves, 2009). Oklahoma passed a law in 1978 authorizing schools to fire teachers for engaging in “homosexual conduct or activity.” (It wasn’t repealed until 1990.) And in California, a referendum known as the Briggs Initiative, which would have made not only homosexuality but pro-gay statements a cause for dismissal from public schools, found its way onto the statewide ballot. (It was defeated in 1978.)
Even today, “No-homo-promo” laws, which forbid discussion or positive portrayals of LGBTQ people or sexuality in public schools, still exist in a handful of states (Machado, 2014). And according to one scholar, K-12 educators are “still confronted with a combination of subtle pressure and express admonition” that “severely curtail” their right and ability to be “out” at school (Biegel, 2018).
The Court was quick to clarify that the Bostock opinion only addresses employment discrimination and does not touch on other “school-related issues . . . such as dress codes or transgender bathroom or locker room access.” But many, including Justice Samuel Alito in his dissent, predicted that Bostock would not remain so tidily contained. Sure enough, in August, in Adams v. St. Johns County School Board, a panel of the Eleventh Circuit Court of Appeals stated:
Bostock has great import for [the transgender student’s] Title IX claim . . . [it] confirmed that workplace discrimination against transgender people is contrary to law. Neither should this discrimination be tolerated in schools. The school board’s bathroom policy, as applied to [the student], singled him out for different treatment because of his transgender status.
Weeks later, in Grimm v. Gloucester County School Board, the Fourth Circuit Court of Appeals essentially agreed, stating that equal protection principles and Title IX “resoundingly” protect transgender students from anti-transgender school bathroom policies. A federal judge in Idaho, also relying on Bostock, halted a law prohibiting transgender women student athletes from participating in women’s sports teams. Even outside of the school context, in Walker v. Azar, a federal judge in New York blocked a rule by the Trump administration that would have eliminated protections for transgender patients against discrimination by healthcare providers. All four cases above were decided less than three months after Bostock.
The struggle goes on
Even as the Supreme Court has affirmed the employment rights of LGBTQ people, it has ruled that others have First Amendment rights to refuse to interact with LGBTQ people — e.g., refusing to serve gay customers (Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018), to include gay scouts (Dale v. Boy Scouts of America, 2000), and to allow gay parade participants (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 1995).
Nor are LGBTQ employment rights entirely settled. Twenty-four days after Bostock, the Court decided, in Our Lady of Guadalupe School v. Morrissey-Berru, that two teachers (both with health conditions) who were fired by religious schools were not protected under federal employment discrimination laws; the case cracked wide open the category of workers employed by religious institutions who fall under the “ministerial exception” to employment discrimination laws, recognized eight years ago in Hosanna-Tabor Evangelical Lutheran Church and School v EEOC. We can expect this exception, and the First Amendment right to free exercise of religion, to be invoked repeatedly by religious schools whose terminations of LGBTQ teachers are legally challenged in the future. Finally, during the current term, the Court will hear a case, Fulton v. City of Philadelphia, involving Philadelphia’s decision not to refer foster children to a Catholic social services agency that refuses to abide by the city’s anti-discrimination ordinance. The saga continues.
References
Biegel, S. (2018). The right to be out: Sexual orientation and gender identity in America’s public schools. Minneapolis, MN: University of Minnesota Press.
Conron, K.J. & Goldberg, S.K. (2020). LGBT people in the United States not protected by state nondiscrimination statutes. Los Angeles, CA: The Williams Institute at UCLA.
Graves, K. (2009). And they were wonderful teachers: Florida’s purge of gay and lesbian teachers. Champaign-Urbana, IL: University of Illinois Press.
Machado, A. (2014, December 16). The plight of being a gay teacher. The Atlantic.
Schulman M. (2020, June 16). The three people at the center of the landmark Supreme Court decision. The New Yorker.
ABOUT THE AUTHOR
Robert Kim
Robert Kim is the executive director of the Education Law Center, based in Newark, NJ. His most recent book is Education and the Law, 6th ed.
