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Panel Takes a Close Look at LGBTQ Cases Before Supreme Court

By John Murph

October 17, 2019

“In too many states across this nation, we can marry our partners on Saturday or Sunday then be fired for that on Monday,” said Gerald Bostock, one of the plaintiffs in three LGBTQ rights cases before the U.S. Supreme Court this term. Bostock was one of the featured speakers at the National Press Club’s panel discussion “Fired for Being Gay: The State of LGBTQ Rights in the Workplace” on October 8, the same day the Court heard oral arguments in Bostock v. Clayton County, Georgia.  

Bostock’s case, along with Zarda v. Altitude Express, Inc. and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, could determine whether sexual orientation is protected under Title VII of the Civil Rights Act of 1964. Zarda involves a gay skydiving instructor who was fired from his job allegedly because of his sexual orientation, while Harris, the first transgender rights case to reach the Court, concerns a funeral director who claims she was terminated because of her gender identity. 

Bostock alleges that he was fired from his job as Court Appointed Special Advocate volunteer coordinator working with at-risk youth after joining a gay recreational softball league. In addition to losing his source of income, Bostock said he lost his medical insurance while recovering from prostate cancer. “During this process, I had to sell my home. I lost contact with friends and colleagues that I worked with,” Bostock said, who appeared at the panel with two of his attorneys, Brian J. Sutherland and Thomas J. Mew IV of the Atlanta-based firm Buckley Beal LLP. 

“After this happened to me, I couldn’t even get a [job] interview within the child welfare industry, much less have the opportunity to accept a job. My portrait was painted negatively by someone else. It’s important to clear my name,” Bostock added. 

During the discussion, Bostock’s lawyers talked about the origins of Title VII, which prohibits employment discrimination on the basis of race, color, national origin, sex, and religion. The law, however, does not explicitly say “based on sexual orientation or gender identity.” 

Sutherland said LGBTQ employees have no expressed protections in the workplace in many states, while Mew argued that the United States needs “uniform interpretation of the federal law that protects LGBTQ employees across the country.” 

“Congress has already protected workers like Gerald by saying ‘don’t discriminate on the basis of sex.’ At the risk of stating the obvious, a gay man is only a gay man because he is a man who is [sexually] attracted to other men,” Mew said. 

“Whether an employee is protected or not under the law is entirely contingent on the luck of the geographic draw,” Mew added. “Are you residing in a state that has a robust state law protection? Are you residing in one of the federal circuits that provides protection under Title VII? If you don’t have a forum or an avenue to vindicate your rights, then I’m sure that there are countless untold stories and countless wrongs that haven’t been brought forward. That’s one reason why we went before the Supreme Court — to give these people the opportunity to present their case.” 

Bostock said being at the center of such a pivotal case has been “surreal.” “I didn’t ask for any of this. But what I learned through my journey is that it’s no longer just about me. The results of this case will impact so many people across the country. That’s why I was willing to carry the burden and take the fight as far as I need to,” he said. 

“There’s a scary side to this, too,” Mew said. “What if the Supreme Court says that Title VII of the Civil Rights Act does not protect people who identify as LGBTQ? What happens?”  

Sutherland said lawyers like him will continue the fight. He mentioned Channing Smith, the bisexual 16-year-old Tennessee student who committed suicide after classmates revealed his sexual orientation on social media. 

“This issue is bigger. This fight for equality and fair treatment has been going on for much, much longer and it will continue regardless of how the Supreme Court resolves this,” Mew said, pointing out that the Court held oral arguments on the LGBTQ cases just days before the 21st anniversary of the death of Matthew Shepard, the 21-year-old University of Wyoming student who was beaten and left to die on October 6, 1998, because he was gay. Shepard passed away six days later.