Courtesy of Gerald Bostock

The evolution of Title VII: How one discrimination case could change the course of gay rights

By Matthew Terrell

When the Civil Rights Act was written 55 years ago, it was codified that employers could not discriminate based on sex. Let’s call it a noble attempt at leveling the playing field as more women entered the workforce. Today, the concept of “sex” — addressed in Title VII of the Act, the federal law that prohibits employers from discriminating against employees — sits at the epicenter of a much broader, more complex reality: that sexual preference and gender identity are an integral part of our freedom as Americans.

Because Title VII doesn’t elaborate when it comes to “discrimination due to sex,” however, there are individuals in this country still losing their livelihoods because of who they choose to be, and who they choose to be with.

On Tuesday, Oct. 8, several cases relating to sex discrimination will go to the Supreme Court. One of the cases revolves around Gerald Bostock, a child welfare worker at Clayton County's Court Appointed Special Advocates program. In 2013, Bostock joined a local gay softball team, the Honeybadgers, and used this new network to promote the program’s efforts to place abused and neglected Atlanta-area children in safe and loving homes.

Courtesy of Gerald Bostock

According to Bostock, he was able to leverage the connections he found through his softball team to find volunteers and fundraising support, which helped him become one of the state's highest performing child welfare advocates. Ironically, as he was fighting for the rights of these kids, he began to experience harassment and negativity from his colleagues. Word that he’d joined a gay softball league began to spread and the bullying swelled. Within a year, he was fired.

“I was totally devastated. I lost my livelihood. I lost a job I loved. What amazes me is that so many people don't realize this is possible. In 28 states, you can marry your partner on Sunday, and be fired on Monday for being gay,” Bostock tells Mic.

Bostock was terminated, he argues, because of his sexual orientation. Georgia is one of more than 20 states that does not provide workplace protections for LGBTQ people; in other words, the state honors a more archaic interpretion of “sex discrimination.” He’s now a plaintiff in one of three similar cases that the Supreme Court will hear this month. If Bostock wins his case, it could potentially shift an entire culture of bigotry by extending workplace protections to millions of people nationwide who could lose their jobs because of their sexual orientation.

The type of discrimination that the Civil Rights laws attempt to address often appears through shady actions, ones that reak of discrimination but are thinly veiled as something else entirely. In April 2013 — after joining the softball team — Clayton County officials allegedly performed a surprise audit on the budget that Bostock handled. He was accused of mishandling money by using his work credit card to pay for meals at popular gay-friendly restaurants in Atlanta. According to Brian Sutherland, Bostock’s lawyer at the time, this audit was a ruse, intended to cover up for the fact that Clayton County was already looking for a reason to fire Bostock.

When this case makes it to the Supreme Court, the issue of a few expensed meals will not be the focus of the case; it’ll be the possibility that his employer was violating a job discrimination law that has yet to be clarified for the whole nation to observe.

“It should not be the luck of the geographic law that determines whether a person can be fired based on who they are and who they love,” says Sutherland. “That's why we need a uniform interpretation of the Civil Rights Act nationally.” When one law gets interpreted differently by different courts — as in Bostock’s case — the high courts need to step in and provide clarity, William Eskridge, a professor at Yale Law School, explains. “The role of the Supreme Court is to take on these profound splits in the lower circuit courts,” Eskridge tells Mic.

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In instances like this, the Supreme Court likes to hear different cases from various circuit courts to get a full view of how a law is interpreted across the nation. That’s why the court is hearing two other cases of discrimination based on gender and sexual identity in tandem with Bostock’s. One of them is Aimee Stephens’s case, where justices will examine her dismissal from the funeral home where she was working when she came out as transgender and began to transition. The Supreme Court of Michigan (where the case originated) ruled in favor of the employer, Harris Funeral Homes, because it said that “sex” as outlined by Title VII is not the same as “gender identity,” so therefore it was okay to fire Stephens for being transgender.

Eskridge predicts that these cases will be very close calls. Some things are to be expected, he says — Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer will likely side in favor of a broader interpretation of Title VII to include sexualilty and gender identity. Justices Samuel Alito and Clarence Thomas will likely favor a more traditional and restrictive interpretation of the law. Justices Neil Gorsuch and Brett Kavanaugh, along with Chief Justice John Roberts, are the ones who will likely decide the outcome, as Eskridge says their decisions are the ones that can’t be predicted.

The reality is that Title VII was probably obtuse for a reason: We can’t expect that the drafters would have considered issues of sexual attraction and gender identity in 1964.

“Roberts might vote in favor of the plaintiffs because he knows that employers overwhelmingly think discrimination against sex identity is wrong,” says Eskridge. Over the summer, hundreds of Fortune 500 companies came out in favor of defending LGBTQ people against workplace discrimnation. It’s also possible that the justices could split between sexual orientation and gender identity and side with Bostock, but not with Stephens — meaning discrimination against gender identity would remain legal.

One could wonder how it got to the point where the Supreme Court could potentially award basic human rights to only one of two intrinsically intertwined identities. The reality is that Title VII was probably obtuse for a reason: We can’t expect that the drafters would have considered issues of sexual attraction and gender identity in 1964. “Gays and lesbians were not protected in [back then] because they were considered criminals. They could be jailed or sent to mental institutions for a long time.” Eskridge says.

This week, we’ll watch with bated breath to see if the language of the law will finally begin to catch up with the spirit of the time.