by Godfrey Dillard
I had the occasion of working on a case with a transgender lawyer a few years back. Initially, no one had told me she was previously a man. She even talked about being married, divorced and having had children by a female. I must admit, at first glance, there was something different about her. But, at the same time, she was intelligent, hard-working and compassionate about winning. She was a model co- advocate in every sense of the words. I enjoyed working with her even after I was informed as to her previous sexual orientation. No problem.
In Bostock v. Clayton County, the United States Supreme Court ruled, this week, that the federal employment discrimination statute (Title VII) barred discrimination against lesbian, gay, bisexual and transgender persons in places of employment. Arbitrarily firing LGBT citizens because of their sexual orientation is now illegal. This case comes behind the Court’s 2015 ruling upholding the right of gay persons to marry.
A fascinating aspect of the case is both parties agreed the term “sex,” in the law (1964 Civil Rights Act), referred only to the then generally accepted biological definition separating men and women. And, so did the United States Supreme Court.
In high drama, the attorney for the aggrieved transgender female opened his oral argument before the Court by saying, “When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII.”
In other words, the employer has discriminated against the man because he treats that man worse than women who want to do the same thing. The discrimination is based on sex because the male employee’s failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men.
The evolution of the 1964 Civil Rights Act beyond its initial focus on racial discrimination has been monumental. For many years now, aggrieved classes of citizens, and now the gay community, have availed themselves to and sought justice in the language: It is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
Unfortunately, far too many well-intentioned citizens strongly believe discrimination is a consequence of the “nature of man” in its rawest forms. And, “laws of men” cannot change it.
With this new discrimination ruling, the Court moves the needle forward against an-all-too-common backdrop of unbridled and discriminatory police misconduct against black and brown citizens. As it continues to struggle with the contours of discrimination in the future, it is hoped the Court will find the will to revisit its views on “qualified immunity” for police officers. A law which protects police offices when they use force against citizens. Only then will the countless Black lives lost by police shootings and excessive force find justice and redemption in a better America.
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