Tag: homosexual

SCOTUS to rule on discrimination protections for LGBT workers

On 22 April 2019, the US Supreme Court issued a writ of certiorari for the cases of Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. 2018) and Gerald Lynn Bostock v. Clayton County, No. 17-13801 (11th Cir. 2018) concerning the question of protection against discrimination in the workplace due to sexual orientation and, separately, for the case of Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, No. 16-2424 (6th Cir. 2018) concerning discrimination due to gender identity. All three cases will be heard under Title VII of the Civil Rights Act 1964.

The application of Title VII of the Civil Rights Act 1964 to discrimination based on sexual orientation has so far divided the federal Courts. Under Title VII of the Civil Rights Act 1964, discrimination is prohibited, inter alia, based on ‘sex’ and in Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. 2018), the Court of Appeals for the 2nd Circuit ruled that Title VII applied to sexual orientation as well because it should be considered a ‘function of sex’ and therefore inextricably linked to the concept of ‘sex’. On the other hand, in Gerald Lynn Bostock v. Clayton County, No. 17-13801 (11th Cir. 2018), the Court of Appeals for the 11th Circuit held, in a short per curiam opinion, that under Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), “[d]ischarge for homosexuality [was] not prohibited by the Title VII.” This classic circuit split has prompted the Supreme Court to consolidate the two cases to answer the question whether Title VII of the Civil Rights Act 1964 applies to discrimination based on sexual orientation. Similarly, in Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, No. 16-2424 (6th Cir. 2018), the Court of Appeals for the 6th Circuit ruled that Title VII of the Civil Rights Act 1964 also applied to discrimination based gender identity explaining that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The Supreme Court will now determine whether Title VII of the Civil Rights Act 1964 in fact applies to discrimination based on gender identity as part of discrimination on account of ‘sex’ (The New York Times).

The question of the application of Title VII of the Civil Rights Act 1964 to discrimination based on sexual orientation and gender identity comes down to the manner of interpretation of Title VII. Under an ordinary literal interpretation, discrimination based on ‘sex,’ must necessarily refer to discrimination of women (comparing to men) or of men (comparing to women). This is further confirmed by the fact that Title VII offers an exhaustive list of characteristics that attract its protection – originally it included race, color, religion, sex and national origin and then, over time, pregnancy, age and disability were added (by Pregnancy Discrimination Act of 1978, Age Discrimination in Employment Act and Americans with Disabilities Act of 1990). Out of these, ‘pregnancy’ is especially interesting as it is necessarily closely linked to sex, yet Congress considered it necessary to add it separately thereby reinforcing the position that ‘sex’ does not cover other characteristics that it is simply linked to. The same conclusion is arrived at using the originalist approach and looking at the understanding of this provision at the time it was being passed. Clearly, in the 1960s, Congress could not contemplate protection for homosexuals in the workplace given that many States at the time (and long afterwords) had anti-sodomy laws on the books. In fact, the unconstitutionality of such laws was only established by the Supreme Court in 2003 in Lawrence v. Texas, 539 U.S. 558 (2003). On the other hand, under a purposive interpretation, Title VII could be taken to be intended to prevent discrimination of minorities in the workplace. With such a purpose, the close relationship between sex and sexual orientation and sexual identity is probably enough to apply a wide construction equating those characteristics.

Given that the application of Title VII of the Civil Rights Act 1964 comes down to the manner of interpretation, the case is likely to be resolved along the ideological lines, with conservative Justices taking a literal/originalist approach and liberal Justices taking a purposive approach. The ultimate outcome of the case will probably lie with Chief Justice Roberts who, although an originalist, is also wary of political implications of the case. Chief Justice Roberts has a record of siding with the conservative Justices in gay rights cases (e.g. United States v. Windsor, 570 U.S. 744 (2013)Obergefell v. Hodges, 576 U.S. (2015)), however this is the first time the Court will hear such a case after the departure of Justice Kennedy who, although a conservative, always sided with the liberals in cases concerning gay rights. This dynamics might affect the way Chief Justice Roberts will vote.

Civil Partnerships for Everyone

On 27 June 2018, the UK Supreme Court ruled unanimously, in the case of R (on the application of Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary), that the unavailability of civil partnerships to heterosexual couples was incompatible with Article 14 of the European Convention on Human Rights read in conjunction with Article 8. The Civil Partnership Act 2004 was introduced by the Labour Government to offer some form of formalised unions to homosexual couples at the time when British society was not ready for ‘gay marriage.’ Since it was designed to introduce formal relationships akin to marriage, the Act expressly applied to same-sex couples only as heterosexual couples could enter into actual marriage instead. This rationale was justified so long as same-sex couples could not marry. But this changed with the introduction of the Marriage (Same Sex Couples) Act 2013. Since then, homosexual couples have been able to choose between civil partnership and actual marriage while heterosexual couples could only marry. This has been challenged as a form of direct discrimination based on sexual orientation contrary to Article 14 of the Convention as applied by virtue of Article 8. Now the UK Supreme Court held that the need to “wait and evaluate” before enacting any reform, an argument the Government put forward to justify the discrimination, does not, in this case, constitute a legitimate aim under the Convention as this is not an instance of a discrimination with a long tradition which is only gradually becoming unacceptable but rather a novel issue whose discriminatory nature was apparent as soon as it was introduced (paras. 42-43). At the end, the Court did not hesitate to issue a declaration of incompatibility explaining that absent any legitimate aim, deference to a parliamentary process is not justified (paras. 54-57). The ruling goes a step further than the hitherto jurisprudence of the European Court of Human Rights which held in 2013, in the case of Vallianatos v Greece (App. Nos.: 29381/09 and 32684/09), that the availability of civil partnerships to heterosexual couples only violated Article 14 of the Convention read in conjunction with Article 8 because homosexual couples were not in a ‘comparable situation’ as they could neither marry nor enter into civil unions while heterosexual couples could do both (paras. 78-79). The same, however, could not be said about the situation of heterosexual couples in the United Kingdom. Moreover, the European Court of Human Rights ruled, in April 2018, in the case of Ratzenbock and Seydl v Austria (App. No.: 28475/12), that the unavailability of civil partnerships to heterosexual couples did not violate the Convention given that they could enter into marriage while same-sex couples could not. The Court was of the opinion that “the institutions of marriage and the registered partnership are essentially complementary in Austrian law.” (para. 40) – the same state of affairs one could observed in the UK between 2004 and 2013 but not since then. Accordingly, the judgment of the UK Supreme Court appears to have been built on the existing jurisprudence of the European Court of Human Rights while shrinking any deference to the legislature within the presumed margin of appreciation. Now it is only a matter of time before Parliament amended the Civil Partnership Act to remedy the injustice.