By Kate Kendell, Esq.–
At 7:30 am on Monday morning, June 15, I got a text from a cousin that said: “Oh my! Just saw the news. Don’t sprain your wrist or ankles when you’re doing your cartwheels today!”
That’s when I knew. We’d won. I realized in that moment that I had not even let myself dream. Unlike when we’d won marriage in 2015, I wasn’t up at 6 am furiously refreshing SCOTUSBlog for the marriage ruling where my hopes were both high and confirmed. I realized I was actually afraid of the ruling about whether LGBTQ people were protected under Title VII of the 1964 Civil Rights Act.
In 2015, I believed. In 2020, I despaired. And then. WE. WON.
We have all been in the throes of so much horror, hate, death, and killing. I almost forgot what it feels like to see justice on full display. Bostick v. Clayton County consolidated three cases: two involving gay men, one a transgender woman. They had all been fired from jobs based on their sexual orientation or gender identity. They claimed that their terminations violated Title VII, which prohibits discrimination in employment based on “sex.”
For decades, advocates, including my former employer the National Center for Lesbian Rights, have argued that “sex” in Title VII includes sexual orientation and gender identity. The U.S. Supreme Court had previously rejected that argument. Then, through the Obama years, we won lower court cases and cases at the Equal Employment Opportunity Commission (EEOC). But we still faced discrimination in employment in many states. There is no federal law protecting LGBTQ employees from being fired for being who we are. Until now.
The Bostick ruling surprised me and so many, because the current Supreme Court is the most conservative in my lifetime. Even more surprising was the author of the majority opinion: Justice Neil Gorsuch. But, for Justice Gorsuch, this case did not seem difficult. He understands that if you suffer discrimination because you fail to conform to societal norms of what it means to be a man or a woman, that IS discrimination based on “sex.”
To be clear, Justice Gorsuch is no friend to LGBTQ people, but he can read. And that is how we won.
We also won because of the 1964 Civil Rights Act. This Act was primarily a response to Jim Crow and rampant discrimination based on race. Our community won because of a law that was finally enacted after centuries of enslavement, the terrorizing of Black communities, and generations of degrading laws and treatment of Black and Brown communities.
We should rightly celebrate this landmark, historic win. And we should understand on whose shoulders we stand, especially as white LGBTQ people; we have a moral imperative to show up, fight back, and speak out. We should not have civil rights hang by such a tenuous thread. We should not be on pins and needles wondering if we will be regarded as worthy of protection.
We are in a truly revolutionary moment. Do not stop. Keep pressing. Keep marching. Keep the pressure on. If we come and stay together. If we keep storming the streets. If we VOTE. We all win. We all feel how sweet it is to believe we matter.
Kate Kendell, Esq., is the former Executive Director of the National Center for Lesbian Rights and now works with Take Back the Court and the Southern Poverty Law Center.
Published on June 25, 2020
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