Symposium: The moral arc bends toward justice: Toward an intersectional legal analysis of LGBTQ rights

Nicole G. Berner is general counsel of the Service Employees International Union. Monica Jin Joo Wilk is a law fellow in the SEIU legal department. SEIU, together with Jobs with Justice and the International Brotherhood of Teamsters, submitted an amicus brief in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC; Bostock v. Clayton County, Georgia and Altitude Express v. Zarda.

Until yesterday, in more than half of the states in our country, an LGBTQ person could get married on a Sunday and risk getting fired from her job the following Monday simply because she failed to conform with traditional norms and stereotypes for her gender. Workers fortunate enough to be members of a union have long been shielded from invidious discrimination by their employers because union contracts protect workers against being fired or discriminated against without just cause. Because of our country’s outdated and inadequate labor laws and the hostility of the Roberts Court and this administration to workers’ collective action, however, the vast majority of American workers today lack the protection of a union. And, in nonunion workplaces, employers have been free to discriminate against workers, including firing them, simply because they are lesbian, gay, bisexual or transgender, unless state laws protected them.

The Supreme Court’s 6–3 ruling in Bostock v. Clayton County righted this longstanding wrong against LGBTQ workers. Yesterday’s ruling eliminated — once and for all — any doubt that Title VII prohibits discrimination against workers because of their sexual orientation or transgender status. This was an historic victory for our community and another bend in the arc of the moral universe toward justice.

But yesterday’s ruling was not only a victory for LGBTQ workers. Bostock was also a victory for heterosexual cisgender women who — like many of our members — work in traditionally male-dominated fields. This includes, by way of example, women security guards, truck drivers, police officers, emergency medical technicians, electrical technicians, road repair crewmembers, corrections officers and railroad engineers. When women succeed in jobs that have historically been held by men, they are often labeled as “gay” or “dykes” as a form of harassment, regardless of whether the assertions about their sexual orientation are true. A career firefighter may be told in her job interview that, if hired, she will “inevitably” become bisexual because no women firefighters are straight. Women security officers may feel compelled to wear makeup and accept sexual advances from male supervisors in order to avoid being called “fags.” A warehouse worker may endure harassment from male co-workers who call her “boy” and “man hater” because they assume she is a lesbian or transgender simply because of the job she holds.

Our amicus brief to the Supreme Court told the stories of some of these barrier-breaking women and why the exclusion of sexual orientation or gender identity from Title VII’s scope would have left not only LGBTQ workers but also these women inadequately protected against sex discrimination. This is because, as the court acknowledged in its ruling, discrimination on the basis of sexual orientation or transgender status necessarily involves discrimination because of sex, which Title VII explicitly prohibits. Although sexual orientation and transgender status are identities distinct from sex or gender, the court recognized that “[w]hen an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies).”

Women workers know from experience that sex-based stereotypes and perceptions of women as lesbian or transgender are indistinguishable. Women working in fields historically dominated by men are often labeled lesbians, transgender or queer as a part of a broader campaign of harassment, regardless of their actual sexual orientation or gender identity. Because these women pursue nontraditional careers and are perceived as acting against stereotypical female roles, they are assumed to contravene other gender norms as well. Women who work in traditionally “masculine” jobs often are assumed to violate the quintessential sex-based stereotypes—namely, that women are attracted to men and that their gender identity matches the sex they were assigned when they were born. For women experiencing this kind of harassment and discrimination, there is no legal or practical way to isolate discrimination based on (assumed) sexual orientation or gender identity from discrimination because of sex. The former is inextricably linked with the latter. And this is part of what the Supreme Court recognized in Bostock.

By holding that Title VII protects workers from discrimination at the crossroads of more than one identity—gender and sexual orientation, or gender and transgender status—Bostock shines a light on the need for a more intersectional approach to anti-discrimination law in general. Justice Neil Gorsuch correctly recognized that multiple intersecting factors may lead to discrimination, including both sex, which is explicitly protected by Title VII, and sexual orientation or transgender status. LGBTQ people of color know from experience that, although the law may require them to name one reason for their mistreatment by an employer, by claiming to have been treated unjustly either because of race or because of gender, discrimination often lives at the intersection of other multiple identities — race, national origin, religion, disability. It is no coincidence, therefore, that people of color disproportionately experience employment discrimination based on their gender identity or expression. Or that the multiple, intersectional forms of discrimination facing LGBTQ people of color are literally a matter of life and death. Of the transgender or gender nonconforming people murdered in 2019, 91% were Black women. Was this the result of anti-Black racism or transphobia? The answer is yes, both. Not either, or.

The Supreme Court’s ruling in Bostock was issued not only during LGBTQ Pride Month but also in the midst of a national reckoning over systemic anti-Black racism and police brutality. The struggles for racial justice and LGBTQ rights, like the struggles for gender equality and LBGTQ rights, are inextricably linked. Pride Month commemorates the Stonewall riots, which occurred in response to police brutality against the LGBTQ community over half a century ago and are credited for giving rise to the modern LGBTQ rights movement in the United States. When police raided the Stonewall Inn on June 28, 1969, the community’s resistance was led by Marsha P. Johnson, a Black, gender-nonconforming drag queen and activist.

Although Bostock is an important landmark victory for working people and the LGBTQ movement, our fight for equality is far from over. Our movement must put the experiences, struggles and leadership of LGBTQ people of color at the center. We can and should celebrate yesterday’s win, because celebration is crucial for all social justice movements. Celebration gives us strength to press on especially during these repressive and traumatic times. But we cannot rest. We must double down on our commitment to building an intersectional movement that advocates fiercely for rights of the most vulnerable among us. LGBTQ justice will not truly be won without economic justice, gender justice, immigrant justice, environmental justice and racial justice. The COVID crisis has laid bare the truth that our struggles are linked and we must fight to #protectallworkers.