Pundits and politicians will tell you that Tuesday’s arguments in Bostock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G. and G.R. Harris Funeral Homes v. EEOC hold in the balance whether LGBT employees can be wantonly fired from their jobs. In reality, what is at stake is something far more fundamental to the American way of government: the democratic process.
The facts of the cases are widely known. Two gay men and a transgender woman were terminated because of their gender identity or sexual orientation. In Harris, for instance, an employee hired as a man decided to live life as a transgender woman. Since that did not square with the dress code of his place of employment — men wear suits, women wear dresses — the employee was at an impasse with the perplexed employer. The employer fired the employee who refused to dress like the man he once said he was. As in Bostock and Zarda, the plaintiffs argue that Title VII, that section of federal law that outlaws employment discrimination based on a person’s sex, includes sex stereotypes.
Federal law has very little to say about sexual orientation and gender identity. But that’s not for want of trying. In 1994, Congress considered the Employment Nondiscrimination Act (ENDA), borrowing from similar legislation introduced in 1974. ENDA sought to introduce a definition of gender identity into federal law and further abrogate Title VII’s protections to include gender identity and, later, sexual orientation.
Yet despite having had sizable majorities in Congress since that time, Democrats have never won support of the law. Earlier this year, Congress considered the Equality Act, a significantly more far-reaching proposal than ENDA. Whereas ENDA at least provided some concession to religious employers, the Equality Act offered none whatsoever. Thomas Farr, president of the Religious Freedom Institute, went so far as to criticize the Equality Act for assuming “that those who have reached that conclusion are indecent and dishonorable.” It passed the House but has not been taken up in the U.S. Senate. Still, Democrats have rallied around the Equality Act, and most of the field of Democratic presidential hopefuls have announced support for it. …