➤ SUPREME COURT, from p.4
plied the Price Waterhouse sex
stereotyping analysis to claims by
transgender plaintiffs, leading the
EEOC to rule in 2012 that a transgender
applicant for a federal job,
Mia Macy, could bring a Title VII
claim against the government on
the grounds that gender identity
discrimination was inherently sex
discrimination.
In 2015, the EEOC extended
that analysis to a claim brought by
a gay air traffi c controller, David
Baldwin, against the US Transportation
Department. The EEOC
followed up these rulings by fi ling
discrimination claims in federal
court on behalf of LGBTQ plaintiffs
— or, alternately, by fi ling friend of
the court briefs — in such cases as
Zarda v. Altitude Express.
In the Harris Funeral Homes
case, the Sixth Circuit became the
fi rst federal appeals court to go beyond
the sex stereotyping theory
for gender identity discrimination
claims, agreeing with the EEOC
that discrimination because of
gender identity is always discrimination
because of sex.
➤ SCOTUS IMPLICATIONS, from p.14
the possibility of RFRA as a “super
statute” to “supplant” Title VII
protections in “appropriate cases”
is ominous. Where a case does not
involve “ministerial employees,”
the full weight of Title VII applies
to discrimination by religious institutions
because of race or color,
sex, and national origin.
Shortly the court will be ruling
on some new cases about the
scope of this “ministerial” exception
— and cases in which gay
employees of Catholic institutions,
in particular, have been fi red for
entering into same-sex marriages
may be affected by the result.
Also, of course, Title VII only
applies to employment decisions.
It doesn’t affect decisions by companies
about hiring people as nonemployee
independent contractors,
and it doesn’t apply to the myriad
other ways that LGBTQ people encounter
discrimination through
denial of services, housing, and
other privileges of living in our society.
This decision does not eliminate
the need for enactment of
the Equality Act, a bill that would
amend numerous provisions of federal
law to extend anti-discrimination
protection to LGBTQ people.
Alito’s dissent suggested
that Gorsuch’s reasoning could
protect LGBTQ people from discrimination
under all those other
federal statutes that address discrimination
because of sex. That
would fi ll a signifi cant part of the
gap, but not all of it, because the
Civil Rights Act provisions on public
accommodations do not forbid
sex discrimination. The Equality
Act would cure that problem.
Alito appended to his dissent a
list of more than 100 federal statutory
provisions that he claimed
would be affected by this decision.
This provides a useful “to do” list
for the LGBTQ rights litigation
groups, fi nding cases to fi rmly establish
that the court’s conclusion
here applies to all those other protections.
Closing the gaps through passage
of the Equality Act and
through passage of state and local
laws to cover employers not subject
to Title VII must be an ongoing
project.
The court’s decision was immediately
controversial with conservative
and religious groups, but
public opinion polls have consistently
shown overwhelming support
for outlawing employment
discrimination against LGBTQ
people for many years now.
Those who are cynical about the
idea that the courts apply “neutral
principals of law” have often exclaimed
that the Supreme Court
follows the election returns, so the
right wing may characterize this
opinion as more political than legal,
but the bipartisan nature of
the line-up of justices rebuts that
contention.
Kavanaugh’s closing paragraph
says we should take pride in this
victory, which was hard-earned
through decades of political, legal,
and personal struggle.
A brief pause to take pride is appropriate,
but pushing ahead to
fi ll the remaining gaps in full legal
equality is essential. A battle has
been won, but not yet the war.
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GayCityNews.com | June 18 - June 24, 2020 15
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