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LGBTQ and the Civil Rights Act

Supreme Court makes a historic decision

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WHAT IT IS

  • The Civil Rights Act of 1964 intended to end discrimination in the U.S. based on race, color, religion, or national origin. [Encyclopedia Britannica
  • It is a landmark of the Civil Rights Movement and often considered the most important civil rights law since the Civil War. [Encyclopedia Britannica
  • President Lyndon B. Johnson signed the legislation in the presence of Martin Luther King Jr. and other civil rights activists. [HISTORY]
orig 299891 19736National Archives

Title VII of the Civil Rights Act of 1964

Title VII of the act made it illegal for employers to discriminate based on race, religion, national origin, and sex. [U.S. Department of Justice]

 

"Under Title VII, it is unlawful to discriminate in any aspect of employment, including:

  • Hiring and firing;
  • Compensation, assignment, or classification of employees;
  • Transfer, promotion, layoff, or recall;
  • Job advertisements and recruitment;
  • Testing;
  • Use of company facilities;
  • Training and apprenticeship programs;
  • Retirement plans, leave, and benefits; or
  • Other terms and conditions of employment."

[U.S. Department of Justice]

 

  • Oct. 2019: The U.S. Supreme Court heard 3 cases that question whether Title VII of the Civil Rights Act prevents discrimination toward LGBTQ workers on the basis of sexual orientation and transgender status. [The New York Times]
  • Two of the cases were brought by men who allegedly lost their jobs because of their sexual orientation.
  • The third case was brought by a transgender woman who allegedly lost her job once embracing her gender identity in the workplace. 

WHY IT MATTERS

 

CIVICS: Before the Supreme Court ruling on June 15, 2020, there was no federal law that explicitly prohibits discrimination against LGBTQ people. There was a state-by-state approach to legal protections (or lack of) for LGBTQ+ individuals. [USA Today]

 

SOCIAL: The Civil Rights Movement of the 50s and 60s illustrates the power of the people to bring governmental change that reflects the present ideals of society. The fight for equal rights continues today.

PROTECTED

How do you define sex?

Supporters of protections for LGBTQ under the act argue that "sex" includes sexual orientation. 

 

Justice Elena Kagan viewed it as “extremely simple test”:

  • “Would the same thing have happened to you if you were of a different sex?” i.e. would the worker have been fired for loving a man if he was a female? [The New York Times]

Precedent

Protections under the Civil Rights Act have evolved over the past 50 years with various Supreme Court interpretations, federal legislation, and precedent set. 

 

The interpretation of sex in Title VII has evolved to include "pregnant women" through the Pregnancy Discrimination Act. [American Civil Liberties Union]

 

Supporters are hopeful the Justices will extend interpretation to sexual orientation.

NOT PROTECTED

How do you define sex?

Some interpret "sex" to mean gender (male/female) and therefore argue the act does not protect LGTBQ individuals identifying sex as sexual orientation. 

 

 

Originalism 

Some interpreters of the law, including Justice Gorsuch, believe in “statutory originalism” or "textualism." [The Washington Post]

 

Originalism and textualism is a legal belief that judges should interpret laws based on their original intent or purpose. [Congressional Research Service]

 

Since LGBTQ rights were not discussed, debated, or included in the original Civil Rights Act, originalism would argue that LGBTQ individuals are not protected by the act.

 

 

Social upheaval 

Justice Gorsuch previously expressed a belief that “the massive social upheaval” of interpreting Title VII to include Congress other forms of discrimination would be best served through acts in Congress. [The New York Times]

WHERE WE ARE NOW

  • Jun. 15, 2020: The Supreme Court ruled in a 6-3 decision that Title VII of the Civil Rights Act protects LGBTQ individuals from workplace discrimination. [The Wall Street Journal]
  • The majority opinion was written by Justice Gorsuch. Read it here
  • The ruling requires all states to protect against workplace discrimination, regardless of sexual identity or orientation. [The New York Times]

Prior to the historic Supreme Court decision,

  • 52% of the LGBTQ community lived in a state with no protection. [USA Today
  • 21 states prohibited discrimination based on both sexual orientation and gender identity;
  • 4 states only covered discrimination based on sexual orientation;
  • 8 states had legal protections that address both sexual orientation and gender identity. [Statista]

THINGS TO THINK ABOUT

  • Read the full Civil Rights Act of 1964 from the National Archives here
  • Supporters of LGBTQ rights are hopeful the Equal Rights Amendment will help enforce equal rights under the law. [Vox]
  • It took eight months for the Supreme Court to rule. Is this an appropriate amount of time for the courts to rule?
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