By Faith Campbell on July 01, 2020
By Faith Campbell and Claire Halffield
On June 12, the Supreme Court affirmed the rights of the LGBTQIA+ community to take action if they experience discrimination in the workplace (Bostock v. Clayton County). In response, RepresentWomen (RW) wants to clarify its stance on the subject of the recognition of transgender or gender non-conforming individuals. The work in which RW engages goes hand-in-hand with advocacy groups working towards equal rights for members of the LGBTQIA+ community. RepresentWomen supports and acknowledges this decision as an essential aspect of our mission, to strengthen our democracy by advancing reforms that break down barriers to ensure more women can run, win, serve, and lead.
The majority opinion of Bostock recognizes the differences between these identities and simultaneously acknowledges the connectedness among them. The makeup of the judiciary, including the Supreme Court, has a broad impact on our nation’s laws, and the outcome of this case coincides with RepresentWomen’s broader mission, vision, and goals.
The topic of gender and sex is not new, not to RW and not to the broader American public. However, the public response and general understanding continue to change, seemingly with each news cycle. A variety of sources (e.g., TV news, social media, online forums, and social gatherings) can educate individuals interested in the debate, while concurrently pushing their stances onto their audience. The debate surrounding the rights provided to transgender or gender-nonconforming individuals stems from years of discrimination, suppression, and oppression against such persons.
What do the terms mean? What is the difference between gender and sex, and how do these two subjects apply to the promotion of women's representation? The answers to all three questions continue to evolve. Many sources answer both questions more in-depth than what we will elaborate on in this piece, but we will provide a basic overview of terms so readers are on the same page.
Definitions come from Gender Spectrum and the LGBTQIA Resource Center at the University of California, Davis:
Cisgender is a term that “refers to people whose Gender identity aligns with their assigned sex at birth.”
The concept of gender holds within itself three dimensions: our body, identity, and social gender—usually assigned after the birth of the child in alignment with their assigned sex.
The gender binary refers to “a system that constructs gender according to two discrete and opposite categories: boy/man and girl/woman. It is important to recognize that both cisgender and Transgender people can have a gender identity that is binary.”
Gender identity is the personal “sense of self as masculine, feminine, a blend of both, neither, or something else.” It can change over time, particularly when the person gains a more comprehensive knowledge of gender terms.
A gender role is “the set of functions, activities, and behaviors commonly expected of boys/men and girls/women by society.”
Heterosexuality refers to a “sexual orientation in which a person feels physically and emotionally attracted to people of a gender other than their own.”
LGBTQIA+ is the acronym used as a descriptor term for the group of identities other than cisgender and heterosexual.
Sex is “used to label a person as ‘male’ or ‘female’ (some US states and other countries offer a third option) at birth, this term refers to a person's external genitalia and internal reproductive organs. When a person is assigned a particular sex at birth, it is often mistakenly assumed that this will equate with their gender; it might, but it might not.”
Separate from gender is an individual's sexual orientation; it is “who we are physically, emotionally and/or romantically attracted to.”
Transgender is a term that can refer to both the broader scope of individuals “whose gender identity differs from their assigned sex” at birth or the more specific reference to a gender identity “that is ‘opposite’ or ‘across from’ the sex they were assigned at birth.”
Since the beginning of the Gay Rights Movement, gender and sex have played an integral role in the LGBTQIA+ community. Recent killings of two Black transgender women, Dominique "Rem'Mie" Fells and Riah Milton, spurred nationwide protests. Violence, murder, and discrimination in the workplace are not experiences that are new to the LGBTQIA+ community—they are events that have occurred for as long as such individuals have existed in public. The Supreme Court decision comes after years of hard work by advocates and activists and is one that RW happily supports.
The Supreme Court acknowledged the complexity of the gender and sexuality spectrums in Bostock v. Clayton County in ruling that employment discrimination based on gender identity or sexual orientation is a violation of Title VII of the Civil Rights Act. The decision itself encompassed three cases: Bostock v. Clayton County, GA; Altitude Express, Inc., et al. v. Zarda et al.; and, R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al. In Zarda and Bostock, Donald Zarda and Gerald Bostock were fired after their employers were informed of their homosexuality. In Harris, Aimee Stephens was fired after informing her employer of her intention to live as a woman in all aspects of her life.
An employer violates Title VII when they intentionally fire someone based on their status as a member of a protected class such as sex. In Bostock, the majority ruled that discrimination based on gender identity or sexual orientation means the employer has discriminated based on their employee’s sex. The Court stated “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.” Under this standard, sexual orientation and gender identity are not new protected classes in Title VII but rather encompassed in discrimination based on sex. “An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex based rules.”
The case was decided with six justices in the majority (Justices Gorsuch, Roberts, Ginsburg, Breyer, Sotomayor, and Kagan), and three justices dissenting, Justice Kavanaugh in one dissenting opinion, and Justices Alito and Thomas dissenting together.
Why The Case Relates to Women’s Representation:
While the Supreme Court has a profound impact on the country, it lacks proportionate representation to the population in the United States. Thurgood Marshall, the first man of color on the Court, was sworn in on October 2, 1967; Sandra Day O’Connor, the first female Supreme Court Justice, was sworn in on September 25, 1981. Even now the composition of the Court is majority white men, with only three women in total and two persons of color out of the nine seats available. Similarly, white men have held the most positions in the judiciary for most of American history. Although half of the country's population does not identify as male, data collected through December 2014 reports that only 33 percent of Article III federal judges identify as women. The problem with this fact is that women often bring a different perspective to the bench. There is a strong potential for women in judgeships to hold "similar gender differences in judicial decision making." Historically, the United States’ legal decisions have been made by individuals not discriminated against or oppressed for their physical characteristics and who yet have the power to decide others' rights, effectively holding the rights of one class of people above others. It is necessary to build upon the changes made in recent years to create a fully-realized republican democracy that decreases the inequality experienced by any member of the American public.
Placing women in particular on the bench has the potential to change the light in which some courts address various issues. As an example, women are more likely to support what some researchers call “compassion issues,”—programs benefiting education, the elderly, and the poor. Regardless of ideology, women are the strongest supporters of women’s rights claims. Although judges are expected to interpret the law and not create the law, in many cases, multiple logical interpretations of the law exist and judges must decide the best tools for determining the correct interpretation of the laws. They use their moral standards to make this decision.
In addition to the difference of perspective, a court's operation differs depending on the gender identity of the judge. Research has shown that women value consensus more than men, and that women opinion authors are more likely to “forge consensual positions and pen opinions that are longer” than men in attempts to blend the perspectives of other judges and introduce multiple theories. If we want to promote consensus building, continued and increased women’s representation on the bench is important.
The impact of this decision for all women, especially those who do not identify as heterosexual and/or cisgender, is the explicit ruling against a form of gender discrimination women often experience. Through Bostock, the Court sustains a woman’s right to take action when her employer fires her for a reason in some way related to her sex. Decisions furthering the rights of all people—including those not explicitly ruling on the subject of women’s rights—furthers the rights of women.
Importantly, the majority’s affirmation of Aimee Stephen’s transition, through the use of her chosen name and pronouns in the opinion, has the potential to guide other courts in their interactions with other transgender individuals within the legal system. A person should have a fundamental right to identify the status of their gender, and the Court’s use of Aimee’s pronouns reinforces this right.
In the timeline of decisions impacting women’s rights, the recent case is a welcome addition to the rulings that bar gender discrimination—an occassion that calls for celebration.
The mission of RepresentWomen is clear: to increase opportunities for all women to become leaders in their communities and in government. . The work we do requires us to recognize that all women do not share the same amount of privilege. A variety of other factors—race, sexual orientation, gender identity, geography, economic status, and education, to name a few—impact the rights given to an individual. RepresentWomen is committed to building norms & systems so that all women can participate as equals in American democracy.