Professors, student discuss Supreme Court decision banning LGBTQ employment discrimination


Evan Robinson-Johnson/The Daily Northwestern

A rainbow stole held in front of the Supreme Court building on June 15, 2020, the day the Court extended civil rights protections to LGBTQ employees.

Isabelle Sarraf, Copy Chief

On Monday, the U.S. Supreme Court ruled in a 6-3 decision that the landmark federal Civil Rights Act of 1964 protects LGBTQ employees from job discrimination.

For members of the LGBTQ community, the Court’s decisions on these cases will have a direct impact on their futures. Prior to these rulings, only 21 states had enacted statutes that fully protected LGBTQ Americans from discrimination — meaning that 52 percent of the country’s LGBTQ residents lived in states where they could be fired on the basis of their sexual orientation or gender identity.

The question centered around Title VII of the Civil Rights Act, which prohibits discrimination against employees on the basis of race, color, religion, national origin and — most important to these cases — sex.

For Pritzker Prof. Susan Provenzano, Monday’s decision hits close to home.

Provenzano’s son came out a couple of years ago as transgender and he is now in the process of transitioning.

Provenzano signed the amicus brief on behalf of the plaintiffs presenting these cases to the Court, she said, because it represented her viewpoints and principles on the meaning of Title VII. She said a former student of hers reached out about the brief, and she was “happy to sign it,” especially given the importance of the law to her and her family.

Decision’s language sets broad precedent

The broad language of this decision is huge, Provenzano said, in terms of its implications for discrimination as a whole. On a legal basis, she said the Court did not limit its interpretation of the word sex to this statute — the way that it understood sex would apply to every statute in which the word sex appears.

“The possibilities for social change with respect to any federal legislation that requires action on the basis of sex is potentially affected by this decision,” Provenzano said.

Another broad implication of this decision is the question of intersectionality, Provenzano said, and how one’s different identities or affinities can converge.

“You can be discriminated against, for example, because you’re a black woman. Or because you’re a lesbian black woman,” Provenzano said. “And that’s something that a lot of courts had difficulty dealing with (prior to this decision) because they would often say that you’ve got to pick one (identity)… Which is absurd.”

Pritzker Prof. Andrew Koppelman explained that the argument of the Court’s majority is “quite straightforward”: discriminating against an employee for being LGBTQ is sex discrimination. This discrimination occurs in the same way as, for example, if you were discriminating against an interracial couple, you would be discriminating on the basis of race, he said.

It’s impossible possible to engage in either of these forms of discrimination without treating somebody worse because of identity, Koppelman said, which is why the logic of the argument against racial discrimination can be applied to LGBTQ discrimination.

“It’s way overdue,” Koppelman said. “And I suppose the Court will have to acknowledge that, since the Court’s decision necessarily implies that this is what the Civil Rights Act always meant, and they just haven’t been willing to acknowledge it until now.”

The decision’s timing and historical context

Weinberg sophomore Dori-Taylor Carter, external president for Northwestern’s Rainbow Alliance, said the timing of this decision is interesting because it’s something that the LGBTQ community can consider as a win, but also as a starting point. As college students and as people in or close to entering the workforce, she said this decision is significant because there is now somewhat of a sense of security among LGBTQ individuals.

It’s a privilege, Carter said, that she would be able to put her title as external president of Rainbow Alliance on her resume and not face explicit discrimination on the basis of her identity — something that her predecessor worried about as an LGBTQ individual from a state that did not have any laws protecting private employees from discrimination based on their sexual orientation or gender identity.

On June 12, the Trump administration announced that it will be rolling back Obama-era health care protections for transgender individuals. The U.S. Department of Health & Human Services said on Friday that the final rule, due to go into effect in August, was based on “the plain meaning of the word ‘sex’ as male or female and as determined by biology.”

Given the timeliness of the decision just two days after the President’s announcement, Carter said there will still be barriers for LGBTQ individuals on the basis of race, ability and gender presentation. There are so many factors involved, she said, that though Monday’s decision can be considered a win, there is more that can be done.

“To this day there’s so much violence against trans folks, and black trans folks in particular, that we’re seeing a real call (to action) for,” Carter said.

Koppelman said Monday’s decision may increase the likelihood that the administration’s erasure of these protections will be overturned in court. The courts take the Supreme Court’s interpretation of Title VII, he said, and use that as a template for interpreting other civil rights provisions — including that medical care is provided in a non-discriminatory way.

Medill Prof. Steven Thrasher said he’s extremely excited about Monday’s ruling. As a gay person and as someone who’s covered the LGBTQ community for the last dozen years, he said he’s happy to see the work of activists to get Title VII to apply to sexual orientation and gender identity — a movement that’s been ongoing since the Civil Rights Act was passed in 1964.

“Even though it’s not dealing with housing or public accommodations, it seems like the ruling is written in a broad enough way that certainly a legal argument can be made if someone is denied housing for being (LGBTQ),” Thrasher said.

Given the ongoing Black Lives Matter protests from the last three weeks — including a march held in Brooklyn, New York specifically for black transgender lives — Thrasher said it’s important to remember that the Supreme Court justices don’t live in a bubble.

Throughout history, Thrasher said, the Supreme Court typically responds to shifts in societal norms and culture. However, there are times when there are very direct connections, he said, between Court decisions and concurrent historical contexts.

“This decision yesterday, which was 6-3, wasn’t even a close decision. It was overwhelmingly on one side,” Thrasher said. “As these things have been happening — not just in the last couple of weeks, but the work that trans activists have been doing for decades — that has an effect.”

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