“Sometimes small gestures can have unexpected consequences.” So begins the opinion of the Court in today’s Supreme Court ruling on protections for queer Americans in the workplace. Chief Justice John Roberts and Associate Justice Neil Gorsuch joined the Court’s four liberal justices – Ginsburg, Breyer, Sotomayor, and Kagan – in ruling that Title VII of the Civil Rights Act of 1964’s prohibition on sex discrimination extends to discrimination based on sexual orientation and gender identity.
The 6-3 opinion is a surprising win for queer rights in Trump’s America. Just three days ago, the Department of Health and Human Services finalized a rule that would remove nondiscrimination protections for queer Americans in healthcare. This new rule reexamines sex discrimination, coming to the conclusion that such discrimination only applies when an individual is treated differently for being a man or a woman, disregarding sexual and gender identities. The announcement came in the middle of Pride Month and on the anniversary of the Pulse Nightclub shooting in Orlando, only a few hours away from where I live. Does that seem unnecessarily cruel? As Adam Serwer writes for The Atlantic, with this administration maybe the cruelty is the point.
Today’s Supreme Court ruling also reexamined sex discrimination but took the opposite tack. Justice Gorsuch, delivering the opinion of the Court, writes that discrimination based on sexual orientation and gender identity requires the discriminator to make a judgment, at least in part, on the person’s sex. He constructs a number of hypotheticals to illustrate the point, but one stuck out to me:
“Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired?”
I never thought about it before today, but the employee in his example could’ve been me. I am queer. I’m also incredibly lucky. For my entire life, being white has shielded me from the racial discrimination that BIPOC individuals face every day. And for 19 years, being in the closet shielded me from the sex discrimination that today’s ruling finally makes illegal in the workplace. I am new to this fight. And my late arrival is proof of the system that makes the fight necessary. Because at the end of the day, some people can afford to linger on the sidelines and others cannot.
Justice Gorsuch wrote: “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result.” Yeah, I bet they didn’t. But discrimination didn’t disappear in 1964. Not with the Voting Rights Act in 1965 or the Fair Housing Act in 1968 or the Civil Rights Act of 1991. Why? Why has it taken so long to see meaningful change?
Gorsuch again: “Maybe some … understood the impact Title VII’s broad language already promised for cases like ours and didn’t think a revision needed. Maybe others knew about its impact but hoped no one else would notice.” I think the truth is that we’ve all known about these problems – systemic racism, certainly, but also sexism, poverty, homophobia, and the innumerable other injustices upon which our society was built – for a long time. Forever, probably. But we all hoped no one else would notice.
Well, people are noticing now.