There are three joint cases being taken up by the Supreme Court that will decide the scope of limitations on protection against discrimination in the workplace, a practice that has been made illegal since the passing of the 1964 Civil Rights Act. This legislation helped create the first five legally protected classes from discrimination: race, color, religion, sex and national origin.
Although any law is limited, and can only modify public behavior—not the motivations that drive a person to act against others—these legal protections have proven to be paramount in expanding worker rights against employment discrimination and harassment in the workplace. This is especially relevant given the inherent power imbalance between an employer and their subordinates. It is through regulating acceptable behavior from the top down that the Civil Rights Act has acted as a force of equilibrium—that is, up until now.
The triad of cases being brought before the court seek to remedy an outstanding discrepancy in the manner in which Title VII is upheld in the U.S.; namely, whether the 1975 amendment, which prohibits discrimination on the basis of sex and associated gender stereotypes, applies to LGBTQ individuals. Currently there are 29 states where it is perfectly legal to hire and fire someone on the basis of their sexual orientation and chosen gender identity.
Conservative groups are asserting that employers who make hiring decisions on the basis of sexual orientation and gender identity are not in violation of Title VII because the amendment only explicitly restricts preferential treatment. Essentially, this means that regardless of one’s assigned gender or chosen partner, being LGBTQ in and of itself can legally incur any disadvantageous treatment, like being fired. Therefore, because employers discriminate against all LGBTQ people equally in their hiring and firing practices, there is no direct instance of preferential treatment on the basis of sex.
This argument is incredibly reductive in understanding how discrimination functions, let alone why it should continue to be legally sanctioned. Even in reiterating conservative talking points, there is little logic in the premise that one can discriminate against all LGBTQ people equally because not all LGBTQ people present similarly. In practice, this would mean that cisgender or cis-passing individuals in the LGBTQ community would be more likely to receive preferential treatment over people who don’t neatly fit a socially constructed heteronormative binary, making this practice inherently unequal.
LGBTQ people have existed across varying ancient societies and will continue to exist past the SCOTUS ruling on this Title VII case. While a conservative ruling will not change these facts, it will make life more dangerous for LGBTQ people than it already is. It will force people back into hiding to get a job, and it will deter people from being able to attain financial stability or economic mobility.
It is disheartening to consider how intricately these civil rights cases are interconnected to religion and by extension religious refusal, a practice that enables people to morally object to carrying out a service that would conflict with their religious beliefs. The conservative push for constraints over Title VII protections to encompass sexual orientation and gender identity is an overreach that systematically favors heteronormative puritan values. This can also be noted in the Trump administration’s stance on rolling back Price Waterhouse v. Hopkins. This seminal case from 1989 found that sex stereotyping and sexual harassment to be evidence of sex discrimination under the provisions of Title XII. A case that has set the precedent that discrimination on the basis of one’s expected gender performance, such as not being feminine or masculine enough, is not grounds for which to fire, hire or promote.
As Mills College students, we are somewhat in limbo. Whether we are already participants in the workforce or going to be post-graduation, the implications of this ruling run deep. Regardless of whether the currently contested scope of Title VII is applicable to our own sexual orientation or gender identity, it does not negate the fact that a failure to secure these basic human rights legitimizes discrimination of the highest order. It legitimizes the persecution of identity and regulation of behavior—with little legal recourse.
Furthermore, it is important to consider that people’s experiences with coming out vary on a spectrum: from those who embraced their identity at a prepubescent age to those who have come to the same realization later in their lives. This discrepancy is important to note because this self-realization and level at which folks are forthcoming about their identity is entirely indicative of their surroundings.
As a student body that is based in the Bay Area, we enjoy social liberties that are not representative of our country at large. The difference can be as slight as experiencing acceptance within our chosen and coincidental community as opposed to simply being tolerated. The freedom to hold hands in public, to take up space and to show pride are not only vital to survival but are essential in order to thrive.
Just because gay marriage was legalized four years ago in 2015 does not mean the fight towards achieving equality is over. The obstacles experienced by the LGBT community are correlated to the ways law and society regulate the multiple intersections of identities within the community. While this pending legal case unfolds, it is imperative that allies and LGBT people cooperate to create safe spaces that celebrate identity as a means of counteracting the looming threat of erasure.G