Today is a day for the history books, and a day for celebration! In Bostock v. Clayton County, a landmark decision released on June 15, 2020, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964’s prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity. In doing so, the Court gave gay and transgender employees throughout the nation workplace protections from discrimination, harassment, and retaliation. The 6-3 opinion, authored by Justice Gorsuch, held that an employer who fires a worker for being gay or transgender violates Title VII, as doing so necessarily discriminates against that person because of sex, as is prohibited by Title VII. In doing so, the Court resolved a split among federal courts as to whether Title VII offered these protections—as some had courts held that employees could be fired for being gay or transgender.
Here in California, our civil rights law, the Fair Employment and Housing Act (“FEHA”), has protected gay and transgender employees from discrimination, harassment, and retaliation for years:
- In 2000, the FEHA was amended to prohibit discrimination based on sexual orientation.
- In 2003, the FEHA was amended to include “gender” in its definition of sex. The definition incorporated by reference then-Penal Code section 422.76, which defined gender as “the victim’s actual sex or the defendant’s perception of the victim’s sex, and includes the defendant’s perception of the victim’s identity, appearance, or behavior, whether or not that identity, appearance or behavior is different from that traditionally associated with the victim’s sex at birth.”
- In 2011, the FEHA was amended to specifically prohibit discrimination and harassment based on “gender,” “gender identity,” and “gender expression.”
I have traced this history and written before about why workplace protections are so important for gay and transgender employees. Now, workers throughout the nation will be protected.
Two of the three plaintiffs in these cases, Aimee Stephens and Donald Zarda, did not live to see this day—a poignant reminder that while we may not see the benefits of some of our work, we do it as much for future generations as for ourselves.
