US Supreme Court Rules In Favor of Job Protections for LGBT Workers

On Monday, June 15th gay rights activists celebrated a victory. The US Supreme Court ruled that an existing federal law, Title VII of the Civil Rights Act of 1964, forbids job discrimination “on the basis of sexual orientation or transgender status.” The court ruled in favor 6-3 of upholding rulings from lower courts saying that sexual orientation discrimination is a form of sex discrimination.

Three cases were considered in the ruling. in one case, Gerald Bostock was fired from his job after joining a gay softball team. The second case involved Donald Zarda, a gay man, being fired from his job as a skydiving instructor after revealing he was gay to a client. The third case involved a trans-identified male, Aimee Stephens, being fired from a funeral home for failing to meet the dress code.

So how does this affect you? Title VII protects employees from discrimination based on sex. Other Title VII cases have argued for protections for sexual orientation on that basis. For instance, the case of Kimberly Hively, who was fired from her job for being a lesbian. Her lawyers argued that sexual orientation is protected under Title VII because but for her being female, no one at her job would have batted an eye at her having married a woman. Appeals courts went back and forth on cases like these, with judges getting stuck on the intent of the 88th Congress who passed Title VII in the first place, and that’s why it was so important that these three cases reached the Supreme Court.

Finally, there’s going to be some consistency: you cannot be fired or denied a job simply because you are a lesbian or a bisexual woman. That’s great!

So What’s the Catch?

There shouldn’t be one, right? But, the court seems to conflate sexual orientation with gender identity. I don’t need to remind you that sexual orientation is based on your sex, while gender identity is not. In fact, they have nothing to do with each other. No one can change their sexual orientation. Meanwhile, gender identities seem to fluctuate depending on an individual’s clothes. In fact, the entire concept of gender identity relies on stereotypes, despite its supporters claiming that it has nothing to do with gender roles that maintain a social hierarchy that keep women oppressed.

Furthermore, it creates even more restrictive roles and damaging stereotypes. And instead of “you can’t do this because you’re a girl” we’re hearing “you can do this, but it means you’re a boy.” No matter which way you put it, it’s women and girls who are harmed by gender while men get to reap the benefits. As much as everyone wants to pretend they’re “woke,” women are still being forced into the same damn boxes, the virgin, the madonna, the terf witch. All the while, we must watch in silence while men make fashion accessories of our chains.

Women don’t identify with the stereotypes put upon us by a patriarchal society. We don’t identify with notions of how patriarchy wants us to look, we don’t identify with limitations on what we can achieve or what we are allowed to do with our bodies. To insinuate that someone can “think or feel like a woman” is misogynist, plain and simple. And that is the problem.

Sex v. Gender

While sex carries legal weight, as it is a biological reality that can be observed and defined, gender holds no legal weight, as it is a subjective experience, without a consistent definition. 

This was demonstrated when the court failed to even define gender and gender identity in this ruling. While they did use the terms in their ruling, they did not use it in a way its used on social media or even in academia. But how could they? No one can seem to agree on an actual definition of gender identity. Doctors, academics, and activists on Twitter all have different and often times contradictory definitions. And now, people are saying when a man identifies as a woman, his biological sex changes to female.

The court specifically made their decision on the argument that trans people are identifying as the sex opposite to their birth sex. This raises several questions. How will this affect female-only spaces like women’s shelters or prisons? Can a male employee demand to work at a women’s shelter simply because he says he’s a woman? Can a male employee claim discrimination if he is denied access to women’s intimate spaces such as showers or bathrooms while at work? 

The ruling stated that it only applied to Title VII, meaning it is limited to employment. But what about Title IX and women’s sports in general?  What do you do when your job is playing sports? Concerns about gender identity endangering women’s sports have been around long before this ruling. In 2015, the International Olympic Committee loosened their guidelines on trans-identified male athletes competing in women’s sports despite research concluding that MTF athletes have a physical advantage over female athletes. 

If the term exists in a ruling about Title VII, why wouldn’t it be used to rule on Title IX cases? And on the 48th anniversary of Title IX, many have voiced their concerns about the status of women’s sports. Tennis legend Martina Navratilova recently noted that, “sex segregation is the only way to achieve equality for girls and women.” We’ve already broken down exactly why this is the case as the USSF made sexist comments regarding the USWNT. Despite this, we already have male athletes entering women’s sports. One infamous example is when trans-identified male fighter Fallon Fox injured opponent Tamikka Brents so severely she suffered a shattered eye socket, a concussion, and a head injury so grievous it required seven staples near her face. To add insult to injury, Fox recently tweeted about how enjoyable it was to cause such grisly injuries to a woman, a TERF.

As for now, it’s unclear whether this ruling will affect areas outside of traditional employment. These concerns aren’t unfounded, though. There have already been dozens of cases of men using gender identity to try and gain access to women’s spaces. Other countries who have already enshrined gender identity in law, such as Canada and the UK, have already experienced the fall out. Places like the Vancouver Rape Relief Shelter in Canada have had funding and nonprofit status stripped, not to mention extreme backlash, for being a shelter that serves female survivors. In the UK, Karen White identified as a woman while still legally male and was moved to a women’s prison despite being a convicted pedophile and rapist.  

It’s Still a Win

Having said all that, this is still a step in the right direction. No one should be discriminated against based on their orientation. No one should be denied a job simply because they do not conform to society’s idea of what a man or a woman should look like or how they should act. Regardless of the labels you apply to yourself or those others apply to you, you should not be confined to harmful stereotypes in order to keep your job. 

For now, we can be happy about the little victories. If you’re thinking, “wait, wasn’t this already a thing?” You’re not the only one. But better late than never, right? This ruling reminds us that sex matters, especially when it comes to the law. Having said that, ambiguous wording can be dangerous. We need to be vigilant in protecting women-only spaces for the safety of ourselves and our sisters.