A day after the highest court in the United States heard the case he had been battling for six years, Gerald Bostock was unreservedly optimistic.
“I have faith in the judicial system,” Bostock told NBC News. “I am going to get to come back to the 11th Circuit and have my day in court here, so that I can not only clear my name but restore my reputation and paint my own portrait, not have it painted by someone else.”
For Bostock and the other plaintiffs, Tuesday’s oral arguments at the Supreme Court were the culmination of yearslong journeys. Bostock, who in 2013 was fired from his job as an award-winning child social services coordinator in Clayton County, Georgia, because his boss discovered he had joined a gay softball league, said that it was “exciting and surreal” to approach the white marble building for his day in court.
Others were excited too — members of the public wrapped around the block, waiting for their chance to witness Tuesday’s historic oral arguments on the question of whether Title VII of the Civil Rights Act of 1964’s ban on employment discrimination “on the basis of … sex” also bans discrimination against lesbian, gay, bisexual, transgender and queer employees.
“What’s bizarre about this is that in the state of Georgia, I can legally get married to my partner on Saturday or Sunday and get fired for it on Monday because I don’t have those federal protections,” Bostock said. “We as a LGBTQ community don’t have those federal protections.”
Congress has a history of inaction on the issue of LGBTQ rights.
Between 2009 and 2011, Democrats briefly controlled Congress and the White House and even though a bill to ban workplace discrimination based on sexual orientation and gender identity was introduced, it was never passed. Sen. Jeff Merkley said in 2009 that it was possible the bill could pass by the end of the year but said the "schedule is very crowded." During that time, Congress focused on and passed the Affordable Care Act or ACA. After Republicans retook control of the House of Representatives in 2010’s tea party wave, there was no route to pass the Employment Non-Discrimination Act, and it became clear that LGBTQ employees couldn’t look to the federal government for a national nondiscrimination standard anytime soon. Subsequent efforts to pass ENDA’s replacement, the Equality Act — which would add “sexual orientation” and “gender identity” to the Civil Rights Act’s list of protected classes — have never cleared both houses of Congress.
In the meantime, LGBTQ people across the country have continued to lose their jobs because of who they are — or, for the purposes of Tuesday’s legal argument — who they are and whom they love.
“We can't deny that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs poorly, not because they can't do whatever is required of a position, but merely because they're a suspect class to some people,” Justice Sonia Sotomayor said, summarizing the stakes. “They may have power in some regions, but they’re still being beaten, they are still being ostracized from certain things.”
Pamela Karlan, an attorney and Stanford University professor who argued on behalf of the plaintiffs in the combined sexual orientation case, summed up her argument with a hypothetical situation in which two employees, one male and one female, announce that they had married their partner “Bill” over the weekend.
“When you fire the male employee who married Bill, and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex,” Karlan said.
Melissa Zarda, the sister of the deceased gay man Donald Zarda whose 2010 firing led to one of Tuesday’s two sexual orientation cases, told NBC News on Wednesday that she felt “confident” that she and the other plaintiffs got their point across.
“The way that we argued it — it’s so simple — if a man mentions his wife, that’s acceptable, but if a woman mentions her wife at work and gets fired, that’s sex discrimination — it’s cut and dry, and that point was repeated up there so many times, I don’t see how anyone can see it any other way,” she said.
But some justices signaled that they do indeed see it another way. Justice Samuel Alito, part of the conservative wing of the court, pondered about “what some people will say about this Court if we rule in your favor” and extend workplace nondiscrimination rights to LGBTQ people nationwide, even as the Equality Act has repeatedly failed to pass out of Congress.
“We might as well just take the Equality Act and issue that as our opinion,” Alito said, sarcastically.
Later in arguments, Justice Neil Gorsuch — who is seen as a potential wild card vote because he signaled a willingness to entertain the idea that discrimination against sexual or gender minorities cannot be separated from discrimination “on the basis of sex” — asked whether judges should consider the potential impact of a ruling in favor of the LGBTQ plaintiffs.
“Should he or she take into consideration the massive social upheaval that would be entailed in such a decision?” Gorsuch asked.
David Cole, chief counsel for the American Civil Liberties Union in the Stephens case, used the moment to turn the justices’ attention to the courtroom, which was packed to the gills with LGBTQ Americans of every stripe — plaintiffs, activists, lawyers, and reporters, young and old. Eager eyes peered out from between red velvet curtains and jostled to get a clearer view as their presence was noted in the record.
“There are transgender male lawyers in this courtroom following the male dress code and going to the men's room and the court's dress code and sex-segregated restrooms have not fallen,” Cole said. “So the notion that somehow this is going to be a huge upheaval, we haven't seen that upheaval for 20 years, there's no reason you would see that upheaval. Transgender people follow the rule that's associated with their gender identity. It's not disruptive.”
Chase Strangio, a transgender lawyer with the ACLU, said that Cole’s comments were not unexpected. “He checked in with both me and Gabriel Arkles, the two trans lawyers on Aimee's team, about the idea in advance,” Strangio wrote to NBC News in an email.
“The most incredible part of that exchange was that David first started to make the point and said, ‘there are transgender lawyers in the courtroom today’ and then Justice Gorsuch interrupted him to say ‘of course there are,’” Chase said, calling it “incredible” and “historic” that the justices acknowledged the reality around them in arguments that included the word “transgender” for perhaps the first time in the court’s history.
“Our presence is itself a testament to how hard people have fought for transgender justice and survival and I am so honored to be a part of that fight and a reflection of the power of the many fights that came before,” Strangio wrote. “No longer can our existence be debated without us in the room.”
In a sign of how much further the people have moved than the law, the vast majority of Americans support extending these rights to LGBTQ people, and in fact already believe — incorrectly — that LGBTQ people already enjoy federal workplace nondiscrimination protections, according to the Public Religion Research Institute or PRRI, a nonprofit organization that conducts research "at the intersection of religion, culture and public policy". In some sense they are right — cities, states and municipalities have passed such laws even as the federal law has lagged behind. Logan Casey, a researcher at the Movement Advancement Project, estimates that 54 percent of Americans live in areas protected by these laws, even as the majority of states lack these laws.
But if the justices were to rule against the plaintiffs on either issue, sexual orientation or gender identity, the preexisting regional differences in workplace nondiscrimination protections would remain in place. For instance, a Georgia resident like Bostock could still lose his job for being LGBTQ in that state, but he would be protected against losing his job in a state like Massachusetts.
The last time that a class of Americans was subjected to a regionalized, systematic discrimination regime was Jim Crow, when African Americans and others were disenfranchised based on the color of their skin. Millions decided to leave their homes and moved north and west in order to escape these circumstances in what is today known as the Great Migration.
But Bostock is adamant that the 1964 Civil Rights Act already protects him, as well as other LGBTQ Americans. “I shouldn’t have to depend on the geographical luck of the draw, and no one should have to do that,” Bostock said. “Georgia is my home, and I should not have to move away.”