Jeffrey Toobin 06152020
Toobin: This is fascinating and enormously important
01:36 - Source: CNN

Editor’s Note: John D. Sutter is a CNN contributor and a National Geographic Explorer. He is director of the forthcoming BASELINE series, which is visiting four locations on the front lines of the climate crisis every five years until 2050. Visit the project’s website or follow him on Instagram. The opinions expressed in this commentary are his own. View more opinion at CNN.

CNN  — 

For LGBTQ Americans, this is a watershed moment – one that’s decades overdue, and one that rivals the legalization of same-sex marriage in terms of what it means for our lives.

LGBTQ people no longer can be fired simply because of who we are.

John D. Sutter

The US Supreme Court on Monday ruled that civil rights law protects us from that. The court, in a 6-3 opinion, recognized that the 1964 Civil Rights Act’s protections against discrimination based on “sex” also apply to gay and transgender people.

“An 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,” the court’s majority said in an opinion authored by Neil Gorsuch. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII [of that act] forbids.”

It’s surprising that it’s taken this long – I hope you’re surprised by that. Until this week in the United States of America, many LGBTQ workers lacked these simple legal protections.

In over half the states in America, you could be fired for being gay. Until now.

Only 22 states and DC explicitly banned employment discrimination because of sexual orientation and gender identity, according to the Human Rights Campaign.

This issue’s road to the Supreme Court was a long one.

For that you can blame Congress.

The Equality Act of 1974 tried to add sexual orientation to a list of categories of people protected from discrimination in certain settings. Later, in 1994, the Employment Non-Discrimination Act aimed to protect gay people from discrimination – including firing – in the workplace. You can probably guess that neither of those efforts passed.

“Supporters tried again in 1995, 1996, 1997 and 1999 and failed repeatedly,” the Washington Post wrote. After that, subsequent versions of these proposals included protections for transgender people, too. None of them passed. Another employment discrimination bill – the Equality Act – passed the US House last year and then stalled in the Senate.

There have been endless and specious arguments over the decades that helped maintain certain employers’ right to fire LGBTQ people.

“The speaker believes this legislation will increase frivolous litigation and cost American jobs, especially small business jobs,” John Boehner’s spokesman told the Huffington Post in a statement in 2013.

Last year, the Trump administration argued in an amicus brief that protections against “sex” discrimination don’t apply to people in same-sex relationships.

Writing in a dissent on Monday, Justice Samuel Alito said that Congress had been considering, and had not acted, on this issue for 45 years. The Supreme Court’s decision to do so on Monday, he wrote, amounted the court creating that legislation — ” more brazen abuse of our authority to interpret statutes is hard to recall.”

“If every single living American had been surveyed in 1964,” he wrote, “it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation – not to mention gender identity, a concept that was essentially unknown at the time.”

It’s staggering, especially now, to read anyone (regardless of his judicial philosophy) attempt to cite 1960s public opinion on discrimination as a justification for taking a narrow stance on civil rights in 2020.

That this common-sense shift has taken so long is infuriating if not surprising. The delay, and the continuing dissent, speaks to the animus certain parts of society harbor toward LGBTQ people. Why would it be politically risky to stick up for these basic rights? It’s beyond me.

But that’s behind us now – this one legal fight, at least.

“People should be able to breathe – to not have to worry about being fired because of their sexual orientation or identity,” Andre Cooley told me in 2013.

Cooley says he was fired from a job as a corrections officer in Mississippi for being gay. I featured him in a series of stories for CNN about LGBTQ rights being violated in the US South.

Reading his words now – his request to breathe – it’s impossible not to think of the larger struggles our country is engaged in at the moment. The right of black people not to be killed by police. The rights of black people not to be targeted by the criminal justice system. The tragic legacy of slavery that still hangs over the present tense and takes far too many lives.

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    On Sunday, thousands were reported to have rallied in Brooklyn for the protection of black transgender people, who are killed in unthinkable and disproportionate numbers. This comes against the backdrop of two recent killings of black transgender women – and the Trump administration’s move to effectively allow the health care system to discriminate against transgender people. None of that is to mention, of course, the global Covid-19 pandemic, which has hit LGBTQ communities hard – and has ravaged black communities across the nation.

    It’s truly difficult to find room for positivity in this moment.

    Still, Monday’s Supreme Court decision should be celebrated – joyously so.

    One important weight has been lifted off of the LGBTQ community.

    Far too many others remain in America.