Whenever we hear the ubiquitous holiday music that pervade the airwaves this time of year, we can't help but want to sing along -- not with the traditional lyrics -- but with the new and improved words that Marriage Equality USA wrote and performed for shoppers at this time each year. For example, to the tune of Jingle Bells, we sang: "Equal rights, equal rights, equal all the way! Oh what fun it is to sing for equal rights today!" We followed it up with: "Deck the Halls with marriage equality! 'Tis the season for equality! Don we now our gay apparel ...." And we belted out many others, hoping to bring a smile to people's faces while spreading a message of the importance of love, dignity, and equality under the law.
This year 'tis the season for workplace and transgender student equality as LGBT people will don their gay apparel and argue for these essential rights in five key federal cases over this year's holidays. These cases could result in rulings of nationwide scope next year or the year following. It's time for our entire community, not just the parties and their lawyers, to be engaged in these cases that could shape LGBT rights for decades.
As we have discussed in earlier columns, transgender teen Gavin Grimm's case to be able to use the school restroom that matches his gender is being briefed before the United States Supreme Court right now for hearing sometime in early 2017. That case could have a major impact on the rights of transgender people all across the country. Four other cases asserting that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation as unlawful sex discrimination are now before Federal Courts of Appeals and could easily go to the US Supreme Court later next year.
Last month, Lambda Legal argued before the 7th Circuit in Chicago on behalf of Kimberly Hively, a lesbian who asserts that her employer, Ivy Tech Community College, terminated her as a part-time adjunct professor after 14 years of service because of her sexual orientation. In court papers, Hively explains that she "never had a negative evaluation," but that she applied for six different full-time positions for which she had all the qualifications and never even got an interview. Seven months after she filed a discrimination complaint against the college with the EEOC, the school let her go. After the recent argument before the 7th Circuit, legal observers believe a favorable outcome is likely.
This month, Lambda Legal argued before the 11th Circuit in Atlanta on behalf of Jameka Evans, a lesbian hospital worker. Jameka claims that Georgia Regional Hospital fired her because she publicly identified as a lesbian, did not "carry [her]self in a traditional woman manner," dressed in traditionally male clothing, e.g., "(male uniform, low male haircut, shoes, etc.)," and did not otherwise "conform" to "gender stereotypes associated with women."
Just after the New Year, the 2nd Circuit in New York will hear the case of Donald Zara, a gay skydiving teacher who asserted that he was fired from his job for being openly gay. Two weeks later, the same court will hear the case of Matthew Christiansen, an openly gay creative director at the international advertising firm, DDB Worldwide Communications Group, whose complaint alleges he suffers from PTSD and severe anxiety and depression because of horrific anti-gay abuse from his boss. The district judge concluded that the alleged conduct, which included his boss drawing lewd pictures of Matthew on an office whiteboard and circulating to the office and via Facebook a movie poster he altered with Matthew's "head on the body of a bikini-clad woman 'in the gay sexual receiving position'" was "by any metric ... reprehensible."
For years, many courts have held that Title VII does not prohibit anti-gay conduct such as that alleged in these cases because Congress made no explicit reference to sexual orientation back in 1964 when it outlawed sex discrimination. Indeed, the district judge in Matthew's case stated that prior 2nd Circuit precedent required her to dismiss his case despite his allegations of his boss' egregious behavior. The enormous gains in public understanding of the lives of LGBT people, the powerful landmark marriage equality decisions, and a recent EEOC ruling applying Title VII to sexual orientation are causing courts now to openly question the soundness and validity of earlier decisions. The district judge in her opinion explicitly asked the 2nd Circuit to reconsider its prior decision.
The United States Supreme Court has never addressed the issue of whether employers treating employees unfavorably because of their sexual orientation constitutes sex discrimination under Title VII. However, the Court has held that Title VII's plain wording outlaws any form of mistreatment of an employee based on sex, regardless of whether Congress actually considered the particular circumstances back in 1964. The Court has explained that Title VII's prohibition on sex discrimination is broad, encompassing "the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Title VII pertains to all employer "treatment of a person in a manner which but for that person's sex would be different."
By its plain terms, the crux of sexual orientation discrimination -- firing a woman who dates another woman, but not firing a man who dates a woman -- is sex discrimination pure and simple.
One recent court described the assumption that a woman will be romantically attracted to a man to be "the quintessential gender stereotype." We look to these appellate courts and subsequently the US Supreme Court to come to the same conclusion.
During the marriage equality struggle, we sang "We Wish for Marriage Equality" to the tune of "We Wish You a Merry Christmas." Later in the carol, instead of demanding "figgy pudding" as they did back in 1935 when the song was written, we demanded marriage licenses and vowed "we won't go until we get them." This holiday season our community must commit that we won't go until we get workplace and transgender student equality. With our community's enormous talent, resources, and commitment to living our lives freely and openly, we know that together we can.
John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. They are leaders in the nationwide grassroots organization Marriage Equality.