Biden Orders Sweeping LGBT Workplace Protections

 

BIG NEWS:  You can't be fired for being gay or transgender, and the President has your back.

President Biden just issued an executive order protecting Americans against discrimination on the basis of sexual orientation and gender identity — a turning point in our fight for equality under the law. https://t.co/fSuxT8dF8w

— Human Rights Campaign (@HRC) January 21, 2021

On his first day in his new job, President Biden has signed an executive order directing all federal agencies and employees to enforce and comply with the Supreme Court's 6-3 ruling last June that extended Title VII workplace protections to LGBT employees.  Justice Neil Gorsuch - a Trump appointee - wrote the majority opinion, summarizing it thus:

In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An 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.

Hooray!  The President and the Supreme Court have now extended the equal protection of the laws to gay people and trans people.   Finally.  But now is the time for the Congress to make it the law of the land in so many words; equal rights should not depend on the ruling of a court (which can later overrule itself) or on the stroke of a President's pen (which a later President can revoke).  It's true, an Act of  Congress can be repealed by a later Congress; but that would put a sort of triple lock on our equality, which is important.  Perhaps we might even dream of a future day when equality is written into the Constitution - but for now we should look to the Democratic majority in Congress to seal it into law.

Nevertheless, thank you, Mr. President, for upholding justice for all Americans today.  Proud of you!

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Supreme Court Rules: You Can't Be Fired for Being Gay

Wow!  Oh my, what a happy, happy day - the Civil Rights Act protects the gays and trans folk too:

Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An 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.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit. 

Hooray!  Read the Court's 6-3 ruling (172 pages, PDF) here.


NBC News reports today's stunning decision:




And your Head Trucker is ashamed to report that he did not really get the whole trans thing until he learned about Aimee Stephens - who, sadly, died last month of kidney failure:



According to the ACLU, this is the first trans civil rights case ever heard by the Supreme Court.


In short:  If you don't have time to read the whole decision, Amy Howe at Scotusblog offers an overview of the ruling, written by Justice Gorsuch - remember how everybody feared he would be such a conservative jurist? - as well as the dissenting opinions.  Among other things, she notes:

Gorsuch addressed some of the broader concerns that the employers had raised in the three cases, about the effect of the court’s ruling on issues like bathrooms in the workplace, locker rooms and dress codes. None of those issues, Gorsuch reiterated, were before the court in these cases. Instead, he stressed, the court is ruling only that an “employer who fires an individual merely for being gay or transgender defies the law.” Whether sex-segregated bathrooms or locker rooms or dress codes might violate Title VII “are questions for future cases,” Gorsuch wrote.

The same is true, Gorsuch added, for questions involving the relationship between Title VII and federal laws and constitutional provisions protecting religious freedom. Although “other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.”

Caution:  It appears from a quick glance at the Wikipedia article on the Civil Rights Act of 1964 that the law applies only to an employer "who has fifteen (15) or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year"; however, your Head Trucker is no lawyer, and you should consult an attorney if you have any questions about the law.

Silver lining:  Michelle Goldberg opines in the New York Times on the irony of this decision in the era of Trump:

[T]he thrilling 6-3 decision the Supreme Court just issued upholding L.G.B.T. equality wouldn’t be as devastating to the religious right if it had happened under a President Clinton.

Before Monday, you could legally be fired for being gay, bisexual or transgender in 26 states. Now the court has ruled that gay and transgender people are protected by Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of sex. The decision has extra cultural force because it was written by Justice Neil Gorsuch, a Trump appointee, and joined by the conservative chief justice John Roberts. . . .

The phrase “But Gorsuch” is shorthand for how conservatives justify all the moral compromises they’ve made in supporting Trump; controlling the Supreme Court makes it all worth it. So there’s a special sweetness in Gorsuch spearheading the most important L.G.B.T. rights decision since the 2015 ruling in Obergefell v. Hodges, which established a constitutional right to same-sex marriage.

This isn’t simply Schadenfreude. The fact that this momentous ruling was written by a right-wing judge sends a message that progress on L.G.B.T. rights will be very hard to reverse.

More is needed:  Justice Kavanaugh's dissent is well-written, well-reasoned, and well worth reading in full, going as it does to the very heart of constitutional government in these United States.  Susan Howe summarizes:

He began by acknowledging that the arguments for “amending” Title VII “are very weighty.” He also observed that the Supreme Court “has previously stated, and I fully agree, that gay and lesbian Americans ‘cannot be treated as social outcasts or as inferior in dignity and worth.’” But, he continued, the job of judges is “not to make or amend the law,” and, as it currently stands, “Title VII does not prohibit employment discrimination because of sexual orientation.” . . .

Kavanaugh contended (and appeared to agree with his colleagues in the majority) that courts should follow the ordinary meaning of the words in a statute, because that is how both members of Congress and the public would understand the law. . . .  And here, in Kavanaugh’s view, the ordinary meaning of the phrase “discriminate because of sex” does not extend to discrimination based on sexual orientation. . . .

Kavanaugh concluded by acknowledging “the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.” But Kavanaugh reiterated his belief that Congress, rather the Supreme Court, should have been the source of that result.

Frankly, your Head Trucker is inclined to agree with Justice Kavanaugh on the simple basis of plain English.  In all honesty, it does seem like doublespeak for Justice Gorsuch to say on the one hand that the Court must be bound by the plain text of the law; and on the other hand, to define the word sex with a meaning that is not part of the plain English meaning.  To say that cat means all four-legged creatures is not to state the meaning of the word, but to add meaning to the word.

However, if a law were to forbid, let us say, cruelty to cats, and you interpret it to mean that cruelty to all four-legged animals is forbidden, then that is good morality, but bad English and bad interpretation, and highly liable to be contradicted by another interpreter.  Because it is good morality, we will accept what the Court has so graciously given us; but can we count on it to be a lasting gift as years go by?  Or merely a cupful of smoke?

It's also important to note that the Court's ruling does not rest on any constitutional right; the justices based their decision solely on the Civil Rights Act, which is merely a federal law, not the Constitution itself.

Therefore, to remove all possible doubts and objections in future, it is imperative that Congress itself amend the Civil Rights Act to specifically prohibit discrimination on the basis of sexual orientation and gender identity. Do keep that in mind, fellas, as we move forward - always remember that the Supreme Court can change its collective mind, and often has, down through the years. The protections we received today must be cemented into federal law at the first opportunity.

The same goes for for the right to same-sex marriage declared by the Court five years ago in Obergefell v. Hodges - which Chief Justice Roberts angrily dissented from at the time as another example of "legislating from the bench."

Of course, Congress can change its mind, too, and laws can be repealed; even provisions of the Constitution can be changed or removed by amendment.  Nothing in this life is ever entirely sure and certain forever; but a law enacted by vote of the People or their representatives is somewhat harder to overturn than a court decision, especially if it reflects the popular will of the time.  And according to the polls, it seems that equal rights for gays and trans folk is indeed the popular will in America at this time, by about 2 to 1.  So let's be sure to nail this ruling down in law.

Meanwhile, again I say: Hooray! The gays are people too. We have a right to exist. And work and live and love, just like everybody else on this planet. Hooray!  Hooray!  God bless America!

And I have lived to see this day.


Bonus:  Former President Obama tweeted out this message today:

Marriage News Watch, 7/21/14

Matt Baume of the American Foundation for Equal Rights reports:




And some long-awaited good news today from the White House, the Washington Post reports:

President Barack Obama on Monday gave employment protection to gay and transgender workers in the federal government and its contracting agencies, after being convinced by advocates of what he called the “irrefutable rightness of your cause.”

“America’s federal contracts should not subsidize discrimination against the American people,” Obama said at a signing ceremony from the White House East Room. He said it is unacceptable that being gay is still a firing offense in most places in the United States. . . .

Since Obama announced that he would take executive action, he’s faced pressure from opposing flanks over whether he would include an exemption for religious organizations. He decided to maintain a provision that allows religious groups with federal contracts to hire and fire based upon religious identity, but not give them any exception to consider sexual orientation or gender identity. Churches also are able to hire ministers as they see fit. . . .

The change for federal contracting will impact some 24,000 companies with 28 million workers, or one-fifth of the U.S. workforce. Many large federal contractors already have employment policies barring anti-gay workplace discrimination. However, the Williams Institute at UCLA Law School estimates that the executive order would extend protections to about 14 million workers whose employers or states currently do not have such nondiscrimination policies.

While few religious organizations are among the biggest federal contractors, they do provide some valued services, including overseas relief and development programs and re-entry programs for inmates leaving federal prisons. . . .

Obama also amended an order signed by President Richard Nixon in 1969 to prevent discrimination against federal workers based on race, religion, gender, nationality, age or disability. President Bill Clinton added sexual orientation, and Obama will include gender identity in a change that will immediately take effect.

Change has come to America

. . . . as shown by this statement on the employment application page at the Obama-Biden transition team's new web site, Change.gov:

The Obama-Biden Transition Project does not discriminate on the basis of race, color, religion, sex, age, national origin, veteran status, sexual orientation, gender identity, disability, or any other basis of discrimination prohibited by law.

(Honk to Pam's House Blend)

It's worth noting here that Bill Clinton signed Executive Order 13087, which prohibited discrimination based on sexual orientation in the federal civilian workforce. However, under Bush, the Office of Special Counsel in the Justice Department refused to enforce this policy, and even purged some gay staffers.