August 8, 2020 at 2:55 pm PDT | by Karen Ocamb
Williams Institute panel dissects ‘ministerial’ and other problems with landmark Bostock jobs ruling

LGBTQ people are not a social or cultural issue. LGBTQ people are human beings linked by love and sexual attraction who confront issues of race, gender, age, legal and economic discrimination largely in intersectional silence due to explicit and internalized systemic homophobia and transphobia. The Williams Institute, an LGBTQ legal and policy think tank, counters that silence through scholarship, collecting and analyzing data that presents the persistent need for LGBTQ rights.

The data illuminates the LGBTQ community: As of April 2020, there are an estimated 13,042,000 million LGBT people age 13 and older in America. As of May, 1.7 million live in California, 15% of all LGBT adults in the U.S., Legal Director Christy Mallory told the Los Angeles Blade.

Williams Institute founding director Brad Sears noted during a July 31 webinar “Are We There Yet? LGBTQ Rights and the Bostock Decision,” that each number is an individual LGBTQ person struggling amid the cacophony of the COVID crisis and the uncertain economic future. That struggle could possibly be compounded by failure to enforce the June 15 landmark Supreme Court ruling in Bostock v. Clayton County  affirming that Title VII protects employees nationwide from discrimination based on their sexual orientation and gender identity.

“We know that there are over 8 million LGBTQ people in our workforce and that half of them live in States that don’t have state laws protecting them from discrimination,” Sears said. And with the Equality Act stuck in Congress, there is no federal statute that explicitly provides that protection, either.

“We know that that has consequences,” Sears said, noting numerous Williams Institute studies reporting much higher rates of LGBTQ unemployment, poverty, food insecurity and housing instability. “In this time of economic downturn, we can see really what that looks like,” along with the greater LGBTQ vulnerability to COVID-19.

And while “it’s good to quantify the impact of that discrimination,” Sears said, “we also need to recognize that every one of those numbers represents thousands and thousands of individual people.”

As background to the webinar, the Williams Institute released a pre-COVID paper looking at state nondiscrimination laws.  A key finding: “3.6 million more LGBT people will gain non-discrimination protections if state-level sex non-discrimination laws in their states are interpreted consistent with Bostock,” said Mallory. HRC published an analysis, as well: “What the Supreme Court Ruling in Bostock Means For State Legislative Efforts.”

Along with Sears, who is also Associate Dean of Public Interest Law at UCLA Law, the webinar featured Alphonso David, President of the Human Rights CampaignAndy Marra, executive director of the Transgender Legal Defense & Education Fund (TLDEF), and Melissa Zahra, whose brother was a one of the plaintiffs in the Bostock case.

Professor Cary Franklin of the University of Texas laid out the case. She explained how Justice Gorsuch, who wrote the positive 6-3 decision, interpreted Title VII using textualism which looks at the text of a law, not what the original legislators intended. Therefore, the courts have held that “any time you discriminate against people because they are gay, lesbian or transgender, you are in part discriminating against them on the basis of their sex.” (Bisexual and non-binary people were not discussed.)

Dissenter Justice Alito was “apoplectic” about that interpretation, saying legislators in 1960 did not intend these sorts of protections. But, Franklin noted, the legislators didn’t then consider discrimination on the basis of motherhood or sexual harassment as forms of behavior that were discrimination on the basis of sex. “Now the court agrees that those things are sex discrimination.”

Unfortunately, Franklin said, the Court didn’t end there, mentioning three possible exceptions to avoid infringements on the rights of religious people: the exemption in Title VII itself for religious organizations to prefer “co-religionists” and discriminate against those who don’t conduct themselves according to the tenants of the religion; the “ministerial exception;” and expanded interpretation of the 1993 Religious Freedom Restoration Act (RIFRA).

“The ministerial exception is not part of Title VII. It is a court created doctrine,” Franklin said. “The court has interpreted the First Amendment to say that when religious organizations are hiring ministers, they don’t have to follow any anti-discrimination law. The Title VII exemption allows you to discriminate on the basis of religion. The ministerial exception allows you to discriminate at all the bases — race, national origin, sex, disability, and age, any anti-discrimination protections.”

Franklin put it into a larger context:

“It’s part of an enormous movement on the part of the religious right to blunt the effect of anti-discrimination law — courts have expanded the concept of ‘minister.’ Expanded it quite far. When I say ‘minister,’ you’re thinking of minister, priest, rabbi, Imam.  That’s not what it means in the law anymore. It increasingly means workers for religiously-affiliated organizations.

 

As you may know, a decision came down this summer involving two fifth grade teachers at a Catholic school. Those teachers filed age and disability discrimination suits. And the court said their employer was not required to follow anti-discrimination law because those teachers were ministers.

 

Now this is an expansion of the law because those teachers didn’t have any particular religious training. They weren’t referred to by the title of ‘minister.’ They spent almost all of their day teaching math and English and science — but the Court held them to be ministers. So Justice Sonia Sotomayor in dissent says this is extremely worrisome. Coaches, camp counselors, social service workers, in house lawyers, media relations personnel, many folks who work for religious organizations could now be counted as ministers.

 

And I will tell you my concern and the kind of maximalist reading of the ministerial exception would extend to healthcare. You could imagine, and this is certainly the movement arguing that religiously affiliated hospitals, the folks who work for them, nurses, maybe even doctors are ministering to the sick.

 

This is a campaign to define an enormous swath of the American workforce as ministers and strip them of any anti-discrimination protection, certainly to protections annunciated in Bostock. But any protection of Title VII.”

The third exemption the Court mentions is RIFRA, originally enacted by the left “as a shield to protect the religious freedom of minority groups who were being injured by laws of general applicability.” But now it is being used as a sword to grant religious individuals license to discriminate against others by exempting them from the entire anti-discrimination regime, says Franklin.

“If the court continues to interpret RIFRA to excuse religious organizations from the mandates of anti-discrimination law, this will truly be the monster that eats anti-discrimination law,” says Franklin. “We will not have much of it left.”

Punctuating Sear’s point that real people are hurt by discrimination, Melissa Zahra told the story of her late brother, Donald Zarda who sued Altitude Express, alleging his employment was terminated because of his sexual orientation.

Gerald Bostock (Photo courtesy CNBC)

Zarda’s lawsuit had been consolidated with a lawsuit brought by Gerald Bostock who alleged he was fired from his child welfare job for being gay by officials in Clayton County, Georgia, and a lawsuit brought by Aimee Stephens, an employee at R.G. & G.R. Harris Funeral Homes, Inc., who alleged she was fired for being transgender.

Aimee Stephens (Photo courtesy ACLU)

Melissa Zahra wanted to put a face behind the story to her brother’s lawsuit.

“Every single thing that mattered to my brother for the majority of his life was being in the air. This was something that he discovered when he was in the military and from the moment of his very first jump, it was his mission to be in the air.

 

He got every single certification that a skydiving instructor could get. He accumulated easily over 10,000 jumps. He got his pilot’s license. He completed his degree in aviation management, He even liked zip-lining — just any way to be in the air.

 

Once he had discovered skydiving, he had my family’s full support because we loved seeing how happy he was. It became his entire world and all of the time what he would be traveling around to all these different drop zones and airports and different countries and teaching and being an instructor. And whenever he came home, he would have a new batch of videos for us to all watch. And of course we found it frightening, but also cool. And, you know, he was just so happy. It was his passion and he loved sharing it with people. So when he decided to dedicate his career to it — he was actually in school for engineering and he decided this is what he wanted to do  and it’s what made him happy.

 

It was about this time in 2010 where he’d already been a skydive instructor for a long time and he had a lot of experience. He was working at a drop zone in New York and he was doing tandem jumps where you’re strapped to the other person with close physical contact.

 

There’s a lot of joking by the instructors and people on the job because people are understandably nervous, especially first-timers. They try to break the ice and lightened things up a little bit. And in an effort to make a student more comfortable with their close physical contact, my brother mentioned he was gay — kind of like, ‘don’t worry about me. I’m gay.’

 

After that jump, he was fired from his job that he loved so, so much.  He was just absolutely devastated by this.

 

It’s important to note that this wasn’t just a skydiving instructor job, like a summer job for him. It was his entire passion. He was afraid that it would be harder to get employment at other skydiving places because it’s a small community and people share and he didn’t want to be seen as difficult or whatever — but at the same time, he knew that he needed to stand up and that it wasn’t fair and that it wasn’t right. So he ended up bringing this suit against his former employer and it just went on for what felt like forever. He would be calling my sister and my mom and me for counsel and support. He was just heartbroken.

 

And he started at this point taking a little bit more risks because he felt like, ‘I’m not going to be able to work. My life’s changed because of this.’ And he started taking riskier jobs. He started getting involved with base jumping, wing suit flying, and the combination of all of that. And it was that that ultimately led to his passing in 2014 in an accident.

        Don Zarda, Melissa Zahra, and Bill Moore (Photo courtesy ACLU)

At that point myself and his partner Bill Moore were left as executors of his estate and we decided we definitely needed to pursue this in Don’s memory because it was so important to him and he wanted nothing more than to clear his name.

 

So that’s what we did. And we had a wonderful team of people who helped us along the way. And I can’t even imagine having been able to do this without them. Every single person was so amazing. And the ruling came out and we were beside ourselves — and that’s where we are today.”

TLDEF‘s Andy Marra talked about the importance of trans employee Aimee Stephens bringing her case – the first-ever trans rights case to be heard by SCOTUS. She was represented by the ACLU, with trans attorneys, Gabriel Arkles, and Chase Strangio who appeared before a conservative-leaning Court and transgender leaders across the country signed numerous amicus briefs “to make sure that our voices were well-represented.”  Unfortunately, like Don Zarda, Stephens did not live to see her Supreme Court victory.

“LGBTQ+ people won because of Title VII of the Civil Rights Act of 1964,” Marra said, “and LGBTQ+ people across the country owe a debt of gratitude to Black and Brown people who came before us and fought so hard for civil rights protections.”

Marra focused on Justice Samuel Alito’s sharp dissent and some of the challenges that trans people face, doing so as an “optimistic person” who believes “our movement will win” — and through a movement and activist lens.

Marra’s first concern was how Alito compared the litigants to pirates. What was most disturbing about Alito’s dissent is that it “relied on harmful and already debunked myths about our community,” Marra said. “LGBTQ people were essentially compared to being rapists and sexual predators. And we were also being cast as folks that had suffered from severe mental illness.”

Marra also noted the “hopeful aspect” for the movement of Alito’s dissent: “essentially Justice Alito laid out a roadmap for advancing legal equality for transgender people and some of that work is already underway,” such as in healthcare access and protections, sex- segregated facilities in sports, and transgender people being recognized with proper pronouns.

There are a number of active litigation being brought that relies on Title VII, including healthcare. One of TLDEF’s lawsuits was cited by Alito “and we’re absolutely proud to be a part of the parade of horribles, as I’m sure we could be described as,” Marra said.

“Because of this ruling, we have a strong case to argue future litigation,” Marra said. This is a window of opportunity for us, in terms of pronouns and the First Amendment. There was a separate section in the Alito dissent that covered freedom of speech and raising the concerns around, essentially, people being forced to use gender pronouns against their will.”

Though military issues are not part of TLDEF‘s litigation portfolio, Marra did note that there are more than 14,000 trans service members, though courts have held that Title VII does not pertain to them.

“It’s worrying,” Marra said, “that the military is the nation’s largest employer for trans folks and I think that will be very interesting to see how that particular issue moves forward.”

Finally, Marra pointed out the importance on educating attorneys and law students,  especially those engaged in public interest law or pro bono work, about how Bostock pertains to trans people, especially people of color.

“There is a belief that this recent ruling and Title VII really doesn’t impact their day to day lives,” Marra said. “I think it reflects the fundamental struggles for transgender people to even attain an appointment or even have access to economic opportunity, let alone be fired from a job.”

Sears introduced HRC’s Alphonso David with accolades. “I’m just blown away by what you’ve been able to accomplish there already,” he said.

David noted that the Williams Institute has been “so instrumental to the movement over the past several decades. I know I’ve been doing this work for more than 20 years, and I’ve been relying on the research from the Williams Institute.”

The Bostock decision, David said, “yes, it is a significant decision. But it has significant limitations, as well.”

The ruling reminded him of the 1998 Oncale v. Sundowner Offshore Services, Inc.lawsuit brought by a male oil rig worker who alleged repeated subjected to sexual harassment by male coworkers. Justice Anton Scalia wrote the majority opinion saying workplace discrimination includes sexual harassment by male coworkers.

“It was a great ruling, but we were also concerned about the application” said David. “And we were concerned about the holding in Oncale being limited or limiting same sex harassment to three situations that were enumerated in the holding. We also were concerned about the difficulties of proving an aggressor’s sexual desire or orientation because of the inference that is not really presumed and how our plaintiff’s going to have to prove that someone was actually harassing them when the person sexual orientation may not be presumed in those cases.”

David noted that there have been many decisions over the years that are inconsistent about the application Oncale. He felt the same about Bostock.

“Here we have a significant ruling that says that LGBTQ people should be treated the same as everyone else under Title VII, because of sex includes sexual orientation and gender identity, which is great.

But we know about the limitations: the Court said it doesn’t relate to religious objections — they’re not talking about that issue. They’re certainly not talking about sex-segregated spaces so we’re talking about bathrooms. We’re also talking about sports. Those issues, the Court did not address it all in Bostok, and I’m not suggesting that we would lose those cases if they were to be advanced to the Supreme court — but it does open up the possibility that we will be confronted with those cases in the near future, where opponents of equality will use Bostock against us. So I’m concerned about that.”

David also raised the point of the implications of Bostock on people of color since often discussion about the LGBTQ community historically do not include people of color.

“That has to change,” David said, as well as considering how Bostock does not apply to public accommodations.

“We have places of public accommodations that are not included in the 1964 Civil Rights Act,” he said. “So restaurants and hotels are certainly included. But there are other places — retail stores, salons, transportation hubs — are not included and that is of significant concern for me.”

David noted that “people of color continue to face persistent discrimination on a daily basis in stores and salons in accessing transportation services, like car services and taxis.”

He cited the example of clerks in a Georgetown neighborhood in Washington, DC, using a mobile app that allowed them to profile suspected shoplifters.

“When they reviewed the data, 90% of the photographs that they took were of Black people, often accompanied by racist language,” David said. Additionally, in Wisconsin, “a Black professional basketball player was denied access to a jewelry store based on his race. This is happening all over the country” where states or locales do not have non-discrimination laws.

“There are no federal laws that protect correct us when I get into an Uber or Lyft as a Black man or as a gay man.  There are no federal laws that protect me in the instance of a retail establishment if I want to go in and purchase a suit or a tee shirt. I can face discrimination unless I have recourse under state law,” David said. “So Bostock is incredibly important for us, is a huge landmark achievement. But we cannot lose sight of how much work we have to do.”

Here are additional resources:

Cary Franklin’s 2012 Harvard Law Review article, which the Supreme Court cited in Bostock:

 

Human Rights Campaign’s recent legal actions:

 

TLDEF’s recent initiatives:

  • Boston v. HHS filed on July 9th by TLDEF and other civil rights groups to challenge new rules released as it pertains to Section 1557 of the ACA https://tldef.org/stay-informed/breaking-were-suing-administration/

  • TLDEF’s Trans Health Project takes a comprehensive, systematic approach to expanding access to transgender-related health care by educating affected individuals about their legal rights; cultivating a robust movement to achieve health care equity; expanding enforcement of existing legal protections; and driving clinical policy changes among insurance carriers.

Here’s the full panel discussion, as well as questions and answers at the end:

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