SCOTUS Brief

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Running head: SCOTUS BRIEF 1 SCOTUS Brief Quianna Bell HRMT 602-I001 September 24, 2023

SCOTUS BRIEF 2 Business Operation Prior to Open Gender Identity/Sexual Orientation In the past, it was not easy to express personal choice in terms of gender identity and sexual orientation without controversy. During the presidency of George Clinton in 1994, “Don’t Ask, Don’t Tell” was adopted to prohibit gays, bisexuals, and lesbians from openly disclosing or displaying homosexual behavior in the military (HRC.org, n.d.). If any went against this law, they were dishonorably discharged. This law was enacted February 1994 and remained in place September 2011 with many standing up for their preference and being discharged. There were many within office that felt this policy was discriminatory in that a person’s sexual preference or identity had any bearing in a person working and completing their assigned duties. Don’t Ask, Don’t Tell was officially repealed September 20, 2011, allowing those who were discharged the opportunity to re-enroll and those who were coming through training no longer had to hide their preferences (HRC.org, n.d.). With the repeal uplifted, the LGBTQ community was in full swing of being incorporated in the workplace as an equal. In terms of private sector, there was much discrimination despite the laws and regulations against discrimination. Employers who were once faced with issues of that were strictly between men and women and inequalities which fell under the Civil Rights Act of 1964 and other protections, are now faced with issues concerning employees who can now be surgically modified into another orientation and sexual identity choices which in terms brings harassment, hostile work environments, terminations, and more that are simply not being publicized to gain attention. With this comes discrimination, legal ramifications, and policy changes that are on a case by case basis. It is my opinion, that some type of law should be implemented which incorporates federal protections for transgenders in the workplace.

SCOTUS BRIEF 3 Legislative Efforts Following the repeal of Don’t Ask, Don’t Tell, Employment Non-Discrimination Act (ENDA) was introduced as a protection that would fall under federal, state, and local law to make it illegal to discriminate against anyone based on sexual orientation or gender identity in the workplace. It would also provide protections to workers that associate with those with alternative lifestyles from harassment, discrimination, or retaliation efforts (Hunt, 2011). Introduced in 1994 and additions for gender identity would be added 2007, this bill had a single clear focus on employment discrimination but died in committee in 2007. It has been introduced multiple times, even being passed through both houses, but never makes it through Congress to become law. Another legislative effort was the Equality Act of 1974 which was broader in nature compared to ENDA. This law would “ban discrimination against gay and lesbian individuals, unmarried persons, and women in employment, housing, and public accommodations such as restaurants, hotels, museums, libraries, and retail stores” (Hunt, 2011). This was considered the first legislation that would directly help to end discrimination against gays and lesbians but did not include the transgender community. It never made it out of the House to be introduced to Senate as it did not have to lack of momentum and support. Case Law/Statutes There have been numerous Supreme Court decisions that have set precedence for future cases of discrimination against transgenders in the workplace that includes sexual orientation and gender identity. The most recent being Bostock vs. Clayton County which ruled that an employer firing an employee simply because they are gay or transgender is in violation of Title VII sex

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SCOTUS BRIEF 4 discrimination provision. Another was Price Waterhouse vs. Hopkins, 490 U.S. 228 (1989), in which the Supreme Court deemed it unlawful of an employer to employment discriminate based on stereotyping to include how an employee should dress, behave or etc. Although the employer was found in violation of stereotyping, Hopkins did not receive compensation due to workplace issues that had occurred between her and other employees. This case is a landmark case that set precedence for other case law. Chavez v. Credit Nation Auto Sales, L.L.C., (WL 158820, 11th Cir. Jan. 14, 2016) is another case in which Chavez believed he was terminated for being transgender and the employer stated it was due to sleeping on the job. This case originally supported the employer before it was found that less than two months prior to the termination, Chavez had received a high performance appraisal from the employer and the employer had made a comment concerning Chavez making him and other employers nervous because he was transgender. This small piece of information brought a halt to disciplinary actions against Chavez and the termination. One last notable mention, Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008). The employee received a tentative offer as a Research Terrorism Analyst before presenting as a woman. After notifying that the employer she was being treated for gender dysphoria and having the surgery, the employer rescinded the offer. The courts referred to the change that it was like “an employee is fired because she converted from Christianity to Judaism, even though the employer does not discriminate against Christians or Jews generally but only "converts." (EEOC, n.d.) The courts also believe that any rejection of claims of transgender is placing personal “judge-supposed legislative over clear intent” which is not the approach that can be utilized moving forward. How does these cases apply to businesses and organizations? The EEOC and Department of Labor now enforce compliance from employers to ensure there is no discrimination or harassment measures utilized within the workplace to protect all employees,

SCOTUS BRIEF 5 including transgenders. This includes hiring, termination, promotions, physical harassment, verbal or any behavior that creates a hostile work environment. Employers not only have to be in compliance with those protections but also should incorporate their own workplace policies that are in alignment utilizing verbiage that is clear and concise. Arguments For/Against Transgender Protections According to Liptak (2020), Supreme Court ruled in favor that landmark civil rights law protect gay and transgender workers. Justice Neil M. Gorsuch argued that “An employer who fires an individual merely for being gay or transgender defies the law,” (Liptak, 2020.) Another argument by Gorsuch was that any “employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex” (Liptak, 2020). Before this decision, it was considered legal to fire employees in most states for being gay or transgender. The opinion by Gorsuch was only a portion that were derived from a wide variety of points to include the LBGT community in relations to bathrooms, locker rooms, sports, pronouns and religious objections to same-sex marriage. Dissenting opinion by Justice Thomas and Justice Alito was that “the majority had abandoned its judicial role” (Liptak, 2020). They also argued that “the document that the court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive. A more brazen abuse of our authority to interpret statutes is hard to recall” (Liptak, 2020). One of the most relevant arguments against transgender protections was by Justice Alito when he stated “Discrimination ‘because of sex’ was not understood as having anything to do with discrimination because of sexual orientation or transgender status in 1964; Any such notion would have clashed in spectacular fashion with the societal norms of the day” (Liptak, 2020). Justice Alito believed that the majority id not address all of the necessary rulings that would cover sports, college housing, employees that are

SCOTUS BRIEF 6 religious, and free speech. He also argued that “plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination “ (Liptak, 2020). Justice Gorsuch responded by utilizing a statement made by critics that Congress hide elephants in mouse holes to which he also stated ““We can’t deny that today’s holding that employers are prohibited from firing employees on the basis of homosexuality or transgender status is an elephant, but where is the mouse hole” (Liptak, 2020) He went on to describe how broad the Civil Rights Acts of 1964 is a broad legislation with vague terms that has been utilized repeatedly in unexpected situations. He ended his argument that “This elephant has never hidden in a mouse hole; it has been standing before us all along” (Liptak, 2020). Stronger Arguments For this case, the stronger argument would be the ones in favor of utilizing Title VII to add protections for transgenders in the workplace. The Civil Rights Act of 1964 was enacted during a different phase of time and instances. Back then, transgender and alternative lifestyles were not accepted and often hidden. Today, societal norms have evolved. It is now normal to love and marry the same sex, utilize medicine to change your identity, and freely choose the identity you prefer and want to be referred by. The main issue is that the verbiage in Title VII is so vague and broad, that it causes confusion with new cases related to LBGT community where only the landmark cases can be utilized to make a ruling. Knowing is only half the battle. If enough cases reach the Supreme Court, where decisions have to be rendered based solely on landmark cases, maybe it could entice Congress and above to look at making revisions or a completely different law. Justice Kavanagh made a strong statement in his dissent in Bostock vs. Clayton County when he stated “Under the Constitution's separation of powers, the responsibility to amend Title VII belongs to Congress and the president in the legislative process, not to this

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SCOTUS BRIEF 7 court," (Nagele-Piazza, 2020). What this demonstrates is a need for clear, concise legislation that can firmly address the issues occurring today. Recommendations My recommendation to SCOTUS would be to take a more in-depth look at the Employment Non-Discrimination Act (ENDA). As Civil Rights Act of 1964 Title VII is holding strong in basis of discrimination, how long will it actually stand to support this issue? ENDA was created to mirror Title VII with clearer verbiage designed to help end discrimination against LGBTQ community as a whole. Some of the key items within ENDA that can be reviewed with more intent are quoted below:  ENDA forbids the use of quotas and preferential treatment of any kind based on sexual orientation.  ENDA exempts religious organizations, including schools and institutions of higher learning owned or operated by a religious organization.  ENDA has no effect on the armed services. It does not apply to current military policies concerning lesbian and gay service members, nor does it apply to special veteran’s benefits.  ENDA does not require employers to provide benefits to the partners of employees. It neither requires nor forbids “domestic partnership” plans that provide such benefits.  ENDA exempts smaller businesses with fewer than fifteen employees, as do existing civil rights protections.  ENDA does not apply retroactively. (ACLU.org, 1996)

SCOTUS BRIEF 8 These are main guidelines that can be amended or manipulated to fit more concisely with some of the legal workplace discrimination lawsuits that reach Supreme Court. It could act as a new legislation so that it is less difficult to define terms such as “sex” and what it is meant by the use in specific cases. It could be applied to all employers. Some exceptions may be employers who provide services or positions that are harmful or dangerous in nature and that will require the use of physical assessments, physical testing, and medical examinations that may be considered in the lines of privacy violations. The world has changed so much that everyone screams equality yet there are still vast differences. In terms of industries, this law should cover all industries but verbiage must be clear and concise. Because it is a lengthy process to get this bill passed and it has been done multiple times before, I would recommend a revisit to ensure that verbiage is strong enough to gain the support it needs to be passed. This would include meeting with advocates and attorneys to gain needed insight in legalities that could arise that would fall under this protection bill. I do not feel that my recommendation will settle the issue as there are so many minds that have not grasp the direction in which the world is heading. If law is law, and that is how decisions are made, then a more effective law should be in place for effective protection of transgenders in the workplace.

SCOTUS BRIEF 9 References ACLU.org (1996). The Employment Non-Discrimination Act. Retrieved from https://www.aclu.org/documents/fact-sheet-employment-non-discrimination- act#:~:text=ENDA%20prohibits%20employers%20from%20using,as%20lesbians %20and%20gay%20men . Bostock v. Clayton County, Georgia; No. 17–1618; 590 U.S. (U.S. Supreme Court, 2020). Retrieved from https://www.scotusblog.com/wp-content/uploads/2020/06/17- 1618_hfci.pdf EEOC (n.d.) Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII. Retrieved from https://www.eeoc.gov/wysk/examples- court-decisions-supporting-coverage-lgbt-related-discrimination-under-title-vii HRC.org (2023 Sep 24) Repeal of Don’t ask, Don’t Tell. Retrieved from https://www.hrc.org/our-work/stories/repeal-of-dont-ask-dont-tell Hunt. J. (2011). A history of the Employment Non-Discrimination Act. Retrieved from https://www.americanprogress.org/article/a-history-of-the-employment-non- discrimination-act/ Liptak, A. (2020). Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules. Retrieved from https://www.nytimes.com/2020/06/15/us/gay-transgender-workers- supreme-court.html Nagele-Piazza, L. (2020). Supreme Court Says Federal Anti-Bias Law Protects LGBTQ Workers. Retrieved from

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SCOTUS BRIEF 10 https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/ supreme-court-title-vii-scope-of-protection.aspx

SCOTUS Brief

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