Conducted by Rafael Santa Maria (PO ’20)
It may come as a surprise to advocates and allies of the LGBTQ+ community that this question has not been resolved yet. Despite the considerable progress made in the continuing battle for equality over the last few decades, it seems hard to believe that sexual orientation remains unrecognized as a protected class at the federal level. As an unprotected class, people of queer sexual orientation do not enjoy comprehensive federal protections from discrimination in employment, housing, federally-funded programs, and more.
Instead, civil rights legislation for LGTBQ+ people has largely come through a hodge-podge of state laws that can vary greatly in degree and implementation. But, while liberal states such as California or New York offer legislation that prohibits discrimination on the basis of sexual orientation, conservative states such as Georgia or Texas lack such protections. This inconsistency means that queer people can be denied their rights simply by crossing the wrong state border.
Filling the void of legislative protections, the judiciary has become the main vehicle for proponents of LGBTQ+ rights. Through lawsuits, activists hope to receive favorable decisions from state or federal courts that either overturn discriminatory laws or recognize specific rights. Notably, the Supreme Court’s decision in the 2005 case Lawrence v. Texas effectively struck down laws that prohibited consensual sexual conduct between same-sex couples. In another major stride in 2015, the Court’s Obergefell v. Hodges decision legally mandated states to issue marriage licenses to same-sex couples, as well as recognize same-sex marriages performed in other states.
Bostock v. Clayton County hopes to build on these civil rights advancements. In this case, social worker Gerald Lynn Bostock was fired by the government of Clayton County, Georgia for “conduct unbecoming of a county employee.” Since Bostock’s firing came shortly after he joined a softball league for gay men, and encouraged league members to volunteer for the County’s social services programs, Bostock claimed that he was fired in violation of Title VII of the Civil Rights Act of 1964. The Act, one of the major accomplishments of the civil rights movement, prohibits discrimination in the workplace on the basis of race, religion, color, national origin, or sex. In his case, Bostock argued that Title VII’s protections against sex discrimination extended to discrimination based on sexual orientation.
After filing a lawsuit against Clayton County at the district court level, Bostock’s case was dismissed. Subsequently, Bostock tried to appeal his case to the Eleventh Circuit appellate court, but was dismissed again since the court had rejected the same sexual orientation argument in the 2017 case Evans v. Georgia Regional Hospital. Bostock then petitioned for a writ of certiorari, which is a formal request to have the Supreme Court review the lower court’s decision. The Court granted certiorari in April of this year.
Bostock’s legal team filed their opening brief to the Court on June 26. In it, they expand on Bostock’s earlier reasoning that sexual orientation enjoys sex discrimination protections. Notably, they claim that sexual orientation must receive Title VII protections since sexual orientation discrimination constitutes a “failure to conform to a sex-based stereotype.” In other words, they claim that Bostock suffered sex discrimination, since Clayton County fired him for not adhering to the wrongful assertion that all men must be heterosexual.
Backing up this broader view of sex discrimination, Bostock’s side points to the Supreme Court’s decision in the 1989 case Price Waterhouse v. Hopkins. In Price Waterhouse, the Court found that Title VII’s sex discrimination protections extended to gender stereotypes. Logically, this means that Bostock should enjoy the same protections, provided that the Supreme Court agrees with Bostock’s characterization of Clayton County’s actions.
Of course, Clayton County offers a very different interpretation of Title VII. In their opening brief filed on August 16, they primarily advocate for an original public meaning interpretation of the statute. That is, they claim that for Congress in 1964, “sex” simply meant being male or female. Therefore, the County argues that sexual orientation discrimination is not a subset of sex discrimination, and claim that employers who make hiring decisions based on homosexuality are concerned with an employee’s sexuality rather than their sex.
Providing evidence for their original public meaning argument, Clayton County points to definitions of “sex” taken from 1960s editions of Webster’s, American Heritage, and Black’s Law dictionaries. The County points out that these definitions focus solely on a binary biological distinction, and do not mention sexuality at all. Continuing, the County even asserts that public meaning of “sex” remains the same today, although they only cite a definition from the American Heritage Desk Dictionary that has not been changed since 2013.
Since the Court granted certiorari, both sides of the case have received support from various organizations in the form of amicus briefs. Unsurprisingly, several LGBTQ+ and civil rights organizations such as Lambda Legal advocated for Bostock, echoing many of the Bostock team’s arguments. In Lambda’s brief, they point out that the Court is not deciding whether sex means the same thing as sexual orientation, “but whether discrimination based on sexual orientation is a form of discrimination based on sex.” On the other hand, conservative and religious organizations such as the National Association of Evangelicals buoyed the arguments of Clayton County by reasoning that sex, gender identity, and sexual orientation should be neatly separated concepts.
On October 8, the Supreme Court heard oral arguments, and as of now the case is awaiting a decision. Although it is futile to accurately predict the Court’s actions and the opinion of the individual justices, considering the Court’s conservative majority, it seems plausible that they will decide in favor of Clayton County. However, as seen in recent cases like American Legion v. American Humanist Association, the justices seem hesitant to establish broad-stroke standards even when delivering more conservative judgments. Considering this behavior – conservatism in the most literal sense of the word – the Court will most likely uphold the precedent established by the Eleventh Circuit, thus denying Bostock’s claims but falling short of significant backsliding of LGBTQ+ civil rights. Nevertheless, until the Court actually decides, both parties – and everyone watching – will continue to wait with bated breath.