By Romelo Wilson
As the Supreme Court decides over LGBTQ+ job discrimination, it leaves me wondering: Why is this decision so delayed from the legalization of same-sex marriage?
According to the Movement Advancement Project, there are 21 states, two territories, and the District of Colombia that prohibit discrimination in the workforce on both sexual orientation and gender identity.
Three other states have some legal restrictions on one of the two, meaning that most of the United States has no prohibitions on the employment discrimination of members in the LGBTQ+ community.
Legalizing same-sex marriage nationwide, but still leaving room for states to fire an employee on the grounds of an aspect of their identity, leaves citizens wondering to what extent are LBGTQ+ members protected in this country.
“I think it’s absolutely ridiculous that it’s even up for debate and if the roles were reversed there would be no question in the judgment,” said Jacqueline St. James, a 20-year-old transgender woman.
Title VII of the Civil Rights Act of 1964 makes it illegal to fire, deprive, or refuse to hire any individual based on race, color, religion, sex, or national origin. Most of the judges that voted against prohibiting LGBTQ+ employment discrimination consider themselves to be “textualists” meaning that they believe law definitions should be established strictly on what is written down, rather than what some may think was implied when the writers created the law.
If government workers continued to be textualists throughout history, then we would still be in an arguably regressive state of the country. With the United States aiming to become more progressive, generally speaking, modifications to laws need to be made in order to keep up with the movement.
Now, let’s think of this statistically. According to The Williams Institute UCLA School of Law, it’s estimated that 4.5% of the country’s adult population identify as LGBTQ+, translating to over 11.4 million people.
Fifty-two percent of the LGBT people live in states where they aren’t protected from employment discrimination as stated by USA Today. About six million people in the country can lose their earnings, their way of supporting themselves and their family, and simply their way of living if their employers don’t agree with their lifestyle.
It makes no sense to me that a same-sex couple can legally become a married couple, but if in a state that doesn’t protect their employment status, they can get fired. Considering that finances are one of the main reasons divorce occurs according to the Insider data team, if the couple has no source of income, that can lead to a snowball of affects within their marriage.
Within these states, this puts LGBTQ+ workers of color at risk and let me explain how. Race is strictly prohibited under Title VII, but if there’s an employer that has animosity towards the race of an LGBTQ+ employee, the employee can’t be fired on grounds of race.
Instead, the employer is able to fire the employee and blame it on the sexual orientation rather than the race of the individual. This would be allowed by law because the “sex” aspect of Title VII currently is interpreted to not include sexual orientation or gender identity.
Although it’s difficult to measure exactly the number of LGBT members, the roughly accurate account of the community is still a considerably large amount. The stigma surrounding the community prevents others from coming out so an estimated 46% of LGBTQ+ workers are closeted in the workplace, according to the Human Rights Campaign Foundation.
The Supreme Court is currently split on the decision with Justice Neil Gorsuch, a Trump appointee, being the deciding vote. Although some judges believe that Congress didn’t intend on banning anti-LGBTQ+ discrimination when writing Title VII, others believe that “sex” within the law can refer to sexual orientation on technical terms.
According to Vox News, Justice Elena Kagan, the Supreme Court’s leading liberal textualist argues that in a situation where a gay man, who has romantic and sexual attachments with other men and is fired while the employer allows women to form the same attachments with men, would be discriminatory under “sex”. The employer would be treating men differently than how they treat women.
Sexual orientation and gender identity are both extremely parts of an individual’s identity, and for that to not be protected in a nation where “all men are created equal” brings the country’s values into question. A person should feel comfortable in their work environment, and for that to happen, change has to occur by legally protecting the rights of the LGBTQ+ community.
Romelo Wilson can be reached at firstname.lastname@example.org