From the Softball Field to the Supreme Court [1]

On June 15, 2020, in the middle of Pride Month, the United States Supreme Court issued a decision holding that the 1964 Civil Rights Act protects LGBTQ individuals from employment discrimination. The decision was widely celebrated, offering a rare glimmer of hope as the country was gripped by the COVID-19 pandemic, ongoing racial injustice and economic insecurity.

As an immigration attorney, I know how easy it is to reduce a complex legal matter into a soundbite. I had to dig deeper, to learn the procedural history of this case, its true legal implications and the impact it will have on our nation moving forward. In the days and weeks that followed, I learned all that I could about the individuals who were brave enough to take their fight all the way to the Supreme Court. Unfortunately, two of the three plaintiffs in this historic case died before the Supreme Court issued its decision. It is important to take time to learn about each of these individuals and to never forget how ordinary people can be called on to do extraordinary things.

The People Behind the Fight to Protect LGBTQ Workers

Gerald Bostock worked for Clayton County, Ga. as a child welfare advocate. Despite his dedication to his career for more than a decade, he was fired because he joined the Hotlanta softball league, a gay league. The official reason provided for his firing was that his conduct was “unbecoming of a county official.”[2] Bostock was escorted out of his office building and left reeling after losing his livelihood as well as health insurance coverage, which was important as he was recovering from a battle with prostate cancer.[3]

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That day in 2013 would set Bostock on a legal journey that would last more than seven years and ultimately reshape the legal landscape for LGBTQ workers. After he was fired, Bostock took his case to the courts, arguing that Title VII of the 1964 Civil Rights Act protects LGBTQ workers from discrimination. The 11th Circuit Court of Appeals ruled against him, and he and his legal team then took the fight to the highest court in the land.

When interviewed in the fall of 2019, while his case was still pending at the Supreme Court, Bostock said, “I’m willing to be the one to stand up so that anyone that wants to work or has the ability to work can do so without living in fear of being fired for who you are or who you love.[4]

By June 2020, when the decision was released, Bostock was the only plaintiff still alive to celebrate.

Don Zarda was a skydiving instructor with Altitude Express in Long Island, N.Y. To make one of his female clients feel more at ease in being strapped to him for a skydiving jump, Zarda remarked casually that he was gay. That would be his last jump as a skydiving instructor at Altitude Express. His employer fired him, and he sued them for employment discrimination. Four years later, the District Court ruled in his favor based on a New York anti-discrimination law, which emphasizes the importance for strong state laws to protect LGBTQ individuals.[5]

In 2014, Zarda died tragically while BASE jumping. His younger sister, Melissa Zarda, stood in for him as his case made its way to the United States Supreme Court. It took courage for Zarda to bring the discrimination lawsuit against his former employer, and it took courage for his sister to carry on after he passed away. While Zarda did not live to see his fight for justice realized, his legacy will live on for generations to come.[6]

The same is true of Aimee Stephens, a transgender woman originally from Fayetteville, N.C. Stephens worked at Harris Funeral Homes in Garden City, Mich.[7] She was employed in the funeral home industry for more than 20 years and was passionate about her work. In 2013 she wrote to her employer to inform them that she would present to work as a woman and no longer as a man. Just to compose and send that email showed an extraordinary amount courage. Her dedication and success in her field made no difference to her employer and Stephens was fired because she was transgender.[8]

Stephens turned to the Equal Employment Opportunity Commission (EEOC) to file a claim against her former employer. In 2012 the EEOC, under the Obama Administration, made it clear that Title VII of the 1964 Civil Rights Act protects LGBTQ individuals based on sex. In 2017, former Atty. Gen. Jeff Sessions, changed the Department of Justice policies and instructed the EEOC to reverse its stance that Title VII protects LGBTQ individuals based on sex. This shows the importance of the executive branch’s interpretation and application of the law.[9]

Stephens passed away of kidney failure in May 2020, just weeks before the Supreme Court would rule in her favor. She was only 59 years old.[10]

Gerald Bostock, Don Zarda and Aimee Stephens fought similar fights. There were personal, professional and legal setbacks, but they never gave up. Their efforts must be recognized and appreciated, as we stand on their shoulders in continuing the fight for LGBTQ rights.

What Does the Decision Really Mean?

While the underlying decision holds that the 1964 Civil Rights Act protects LGBTQ employees from discrimination, the decision leaves open the possibility of employers to claim a religious exemption. In 2017, the Supreme Court ruled that businesses can discriminate against LGBTQ customers in its Masterpiece Cakeshop v. Colorado Rights Commission[11] decision. While the Bostock decision is a giant step in the right direction, there will be many legal challenges to come.

Where Do We Go from Here?

All major legal decisions must be taken in context. While the Bostock decision is a key victory for LGBTQ rights, it comes in a sea of anti-LGBTQ actions taken in recent years. In January 2020, the Supreme Court upheld the ban on transgender military service.[12] In June 2020, a mere three days before the Supreme Court issued the Bostock decision, the Trump Administration announced its plans to eliminate the portions of the Affordable Care Act that protect LGBTQ individuals from discrimination in healthcare.[13] More recently, the U.S. Department of Housing and Urban Development announced its plan to allow homeless shelters to turn away transgender people, in direct violation of the Equal Access Rule established in 2016.[14]

Justice — and its antithesis, discrimination — occur all around us, from our places of employment, to our local, state and federal governments. Bostock, Zarda, and Stephens serve as an example that we can never stop fighting for LGBTQ rights on every front and at every level.

Jessica Yañez is a North Carolina certified specialist in immigration law.

1 Bostock v. Clayton County, 590 U.S. ___ (2020)

2 Bostock v. Clayton County, 590 U.S. ___ (2020)

3 Georgia Man Fights for Gay Rights in Supreme Court Case, Hurley, Lawrence, Reuters (Sept. 13, 2019)

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4 Georgia Man Fights for Gay Rights in Supreme Court Case, Hurley, Lawrence, Reuters (Sept. 13, 2019)

5 Zarda v. Altitude Express Case Overview, Freedom for All Americans Litigation Tracker (https://www.freedomforallamericans.org/zarda-v-altitude-express-inc/) (last updated June 17, 2020)

6 My Brother Was Fired After Revealing He Was Gay. Now I’m Continuing His Fight at the Supreme Court. Zarda, Melissa. Time Magazine (Jul. 1, 2019)

7 Aimee Stephens, Plaintiff in Transgender Case, Dies at 59. Ortiz, Amy. New York Times. (May 12, 2020)

8 Remembering Aimee Stephens, Who Lost and Found Her Purpose. Gessen, Masha. The New Yorker. (May 20, 2020)

9 Transgender Bias at Work Not Banned by Law, DOJ Tells Justice. Murray, Erin. Bloomberg Law (Aug. 16, 2019)

10 Aimee Stephens, Plaintiff in Transgender Case, Dies at 59. Ortiz, Amy. New York Times. (May 12, 2020)

11 Masterpiece Cakeshop v. Colorado Rights Commission, 584 U.S. ___ (more) 138 S. Ct. 1719

12 US Supreme Court allows Trump military transgender ban. BBC News. (Jan. 22, 2019)

13 Transgender Health Protections Reversed By Trump Administration. Simmons-Duffin, Selena. NPR (June 12, 2020)

14 HUD Proposal to Gut Equal Access Rule Puts Transgender Lives at Risk. Tran, Viet. Human Rights Campaign. (July 23, 2020)

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