Gay, Trans, and Capable of Working a Job? Oh My! -- A very biased look at how dumb the argument against including LGBTQ into Title VII discrimination law.

***DISCLAIMER: Welcome! This is a blog written by me, Michael Caligaris, a 2020 Juris Doctor Candidate from NKU Chase Law. This blog does not in any way constitute legal advice or services; instead, this blog is merely an examination of employment discrimination law in the US, past, present, and future. Enjoy!

Just last month, the Supreme Court of the United States heard oral arguments regarding the scope of Title VII’s prohibition of work discrimination on the basis of “sex”, which were founded upon two cases where gay men were fired for their sexual orientation—I mean, C’mon.  Those case were Altitude Express v. Zarda and Bostok v. Clayton County. However, there was a third case *gasp* (Harris Funeral Homes v. EEOC) that expanded the scope of the oral arguments by arguing that Title VII also applies to transgendered workers fired for being, well, transgendered—so again, this is an argument about “sex”, which, included in that, the label of "gender" or how we define it, and that those terms do not apply relative to the legislative intent of Title VII. Are you bored by this line of thinking? I am. Because it’s pretty obvious that a prohibition for firing based upon “sex” or "gender" would entail homoSEXuals and TransGENDERs—is that too literal of a reading for all you Federalist Society Bros out there? If it is too literal, careful-- the Textualism Ghost of Antonin Scalia may come back to haunt you!

But, seriously, that’s exactly what conservative are trying to argue in front of our esteemed Justices: that the term sex does not include discrimination based upon with whom one has sex or even discrimination based upon the sex of employee who has relationships with the same sex; that the term gender doesn't mean people who identify as a different gender. You see, this issue here is that conservatives only stand by textualism when it supports their argument, and they abandon it when it doesn't. Because when it boils down to it, these cases are still just debates of “sex” and "gender" and so why do we have to debate at all? See contra You’re an Idiot for Always Arguing Textualism. 

So arguing in the alternative, the conservative stance has shifted to this: the legislature did not envision trans and gay people to apply to “sex” or "gender" when they passed the law in the Civil Rights Act of 1964. And well, again, I’m going to have to put the kibosh on this: What a highly contradictory and willfully blind take on legislative history. For example, take the Second Amendment of our great Constitution: “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Did the Forefathers envision modern weapons—i.e. AR-15s, bump stocks, or owning 3,000 guns like this guy below:

read more here

The answer is: No, no matter what you argue, Thomas Jefferson or even Benjamin Franklin and his harem of French women did not envision that in the year 2020, America would be tolerant of such an expansion the Second Amendment. But, dOnT tAKe mY GunS, Commie.

 And this line of thinking is exactly what Justice RBG argued on the record when she stated, in oral argument last month, “in 1964, the American Psychiatric Association specifically listed “homosexuality” as a mental illness.” Thus, the crux of her argument is that times change, and legislative intent applies to those changes. Hence, it definitely applies here. 

So if the purpose of work discrimination laws is to allow anyone able to actually work and do their job to their best ability without having the fear of being fired based solely upon who they are, how they were born… well, the Monumental Decision pending in the Supreme Court right now will have to decide just that.

As a fellow reader, I ask that you reply in the comments by telling me your favorite Founding Father and why. Mine is John Adams, Esq. because he actually defended the British after the Boston Massacre, which in retrospect totally embodies maybe the greatest virtue of current Justice System: Everyone is entitled to a defense.

Until next time, treat everyone equally.

Michael