By Ben Gierhart
In an era when acceptance of queer people seems to be at an all-time high, it may come as a shock that the idea of whether or not someone can be fired for being gay or trans is still being contested. That is exactly what is being decided on October 8 as arguments will take place before the Supreme Court of the United States. During the proceedings, justices will consider whether anti-LGBT discrimination is a form of sex discrimination, and thus prohibited under Title VII, which bars discrimination based on sex in the workforce.
“That’s the question the Supreme Court is set to decide in Bostock v. Clayton County,” says Dan Canon, a local civil rights lawyer and professor who perhaps most notably contributed to arguments made before the SCOTUS in 2015 that decided the legalization of same-sex marriage.
“There is no specific statutory protection for LGBTQ+ people in federal law, but some courts (and Obama’s EEOC [Equal Employment Opportunity Comission: a federal agency that administers and enforces civil rights laws against workplace discrimination]) interpret existing laws prohibiting sex discrimination as also prohibiting LGBTQ+ discrimination in the workplace,” adds Canon.
According to Canon, the law is a mess right now: “For example, lesbians and gay men are protected from workplace discrimination in Indiana, but not in Kentucky; in Kentucky and Ohio, however, there are clear and explicit protections for trans people under the same federal law.” To be sure, this is a large part of why the SCOTUS exists, to resolve inconsistencies in the interpretation of federal law.
Donald Trump has made two controversial justice appointments in Neil Gorsuch and Brett Kavanaugh, which lead many to believe that the SCOTUS’ decision on this matter may very well be unfavorable. In that scenario, the result would be that the few federal courts that protect LGBTQ+ people from workplace discrimination under Title VII would no longer be able to protect those people. “The federal law would be definitively interpreted as providing protection only on the basis of sex, not sexual orientation,” explains Canon.
There is reason for hope, however.
Like other states in the nation, Kentucky has LGBTQ+ non-discrimination ordinances prohibiting discrimination in employment, housing and public accommodations. Most recently, Versailles joined the list as the 14th Kentucky city to approve such an ordinance.
“The ruling will not likely affect those laws at all, except if there are state courts interpreting sex discrimination to include LGBTQ+ folks in a similar state act,” says Canon. He does go on to warn, however, that it is possible that state courts might be inclined to change their interpretation and not longer consider LGBTQ+ citizens protected if SCOTUS rules against the plaintiffs in Bostock v. Clayton County.
“In short, a ruling against the plaintiffs would be very bad, but not a seismic difference from what we see now. Congress can still do what it has been trying to do for about 20 years now and include sexual orientation in the list of protected classes under federal discrimination laws,” offers Canon.
Now is not a time to sit on laurels, wait and hope for the best. “Even if this President is impeached, the damage he’s done to the judiciary will last a lifetime,” cautions Canon. “The courts have not been, and are not going to be, any safe haven for working class people, and especially not minorities. We have to find different strategies to get these protections in place, both within electoral politics and outside of it.” If things do not go well on October 8, do not despair. As always, the usual calls to action of organizing, voting and running for office apply and are appropriate reactions that can foster the change this country needs.
To register to vote, please visit www.GoVoteKY.com. The deadline is October 7, 2019.