Should Missouri be a state where an exemplary employee can be fired simply because of her sexual orientation or gender identity? Because that’s the message our state’s attorney general seemed to trumpet loud and clear Monday morning.
That’s when Eric Schmitt joined 13 other Republican attorneys general and Kentucky’s governor to file a brief with the Supreme Court arguing that lesbian, gay, bisexual and transgender Americans are not protected from employment discrimination by Title VII of the landmark Civil Rights Act of 1964. It’s an obvious echo of a separate Aug. 16 filing by the Justice Department arguing specifically that transgender people are not covered by the act.
Of course, Schmitt’s office averred that taking this fight to the high court is not an assault on our fellow humans. Rather, it’s all about the legalese. The brief contends that Title VII’s reference to the term “sex” “did not include transgender individuals,” according to a statement from spokesperson Chris Nuelle.
The Trump administration’s filing includes similar reasoning: “Discrimination based on transgender status does not inherently entail discrimination because of sex.“
They’re both probably right there. And that’s the problem.
Since 1964, we’ve come a long way, baby, on a vast array of issues related to human sexuality, sexual orientation, gender identity and biology. Today, we have an evolving and ever more realistic view of the fact that not everyone fits into so-called traditional gender roles, nor even into a biological binary of male or female.
Since the ‘60s, courts have interpreted the Civil Rights Act in ways President Lyndon Johnson and the 88th Congress likely never envisioned. In February 2018, the U.S. Court of Appeals for the 2nd Circuit ruled that skydiving instructor Donald Zarda’s rights were violated when his employer fired him because he was gay. His lawyers used an emerging legal strategy that asserts Title VII applied because he was terminated for reasons of “sex stereotyping.” The Equal Employment Opportunity Commission agreed, filing an amicus brief on Zarda’s behalf. The Supreme Court will hear oral arguments on the case and another similar one on Oct. 8.
St. Louis, Kansas City, Jackson County and other municipalities in Missouri have written protections for LGBT Missourians into their own anti-discrimination policies. But earlier this year, MONA — the Missouri Nondiscrimination Act — failed in the General Assembly for the 21st consecutive time. Protections for LGBT Americans are an irregular patchwork all over the country.
Confused? Blame gay marriage.
It seems hard to believe, but it’s been only four years since the Supreme Court made it the law of the land with the Obergefell v. Hodges decision. Public attitudes have been steadily shifting in favor of LGBT people’s rights for years. A Pew Research Center poll this year showed a solid 61% of Americans approve of gay marriage, versus only 31% 15 years ago.
That’s progress. But the fact that our society is now a friendlier place for LGBT citizens may obscure the reality that they still lack many fundamental legal protections.
And now, there are emerging signs of public support slipping, too. The Accelerating Acceptance 2018 study from LGBT advocacy group GLAAD shockingly noted that its data showed a “drop in acceptance for LGBTQ people” for the first time. And in 2019, “a growing number of young people ages 18-34 report being less comfortable around LGBTQ people in certain personal situations.”
It seems we’re in an era where some of us are increasingly tired of the niceties of “live and let live.” Hate crimes have risen slightly across the board for the past three years, including those against LGBT people.
The transgender community has been a persistent and obvious target of President Donald Trump and his administration. Within a week of the 2016 election, Vice President-elect Mike Pence assured Focus on the Family’s James Dobson that the new administration would be looking at reversing transgender-friendly policies from former President Barack Obama. And Trump’s effective ban on transgender people serving in the military went into effect in April of this year.
So while Schmitt and his fellow Republicans may be correct that the Civil Rights Act has been stretched past its original intent, it’s hard to buy that the briefs they’ve filed don’t trade on at least a whiff of dog-whistle animosity against a small minority — just 4.5% of us.
Is this the side of history they want to be on? Because wherever the law takes us 10, 20 or 50 years hence, does anyone really think we’re heading back to the days when non-heterosexual relationships were kept in the shadows?
Schmitt’s name will forever be on that brief.
Clarity on the matter would be welcome. And if the Supreme Court decides that the definition of “sex” needs a legal overhaul, we’re going to have a lot of work ahead of us as we remake our laws to reflect reality — and common human decency.