Employment discrimination against gay and transgender employees
Federal law (“Title VII”) makes it illegal for an employer to “discriminate against any individual because of race, color, religion, sex, or national origin.”19 The question this term was whether discrimination based on sexual orientation or sexual identity is within the statute’s meaning of “sex.” By a 6-3 majority, the Court held that Title VII applies both to orientation and identity. (This was an interpretation of the statute, not a broad constitutional ruling.)
The majority reasoned that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with 2 employees, both of whom are attracted to men.” If the employer fires the gay employee, “the employer discriminates against him for traits or actions it tolerates in his female colleague.”20
AMA and a number of other medical organizations filed an amicus brief in the case.21 The core of the argument of the brief was, “Employment discrimination against transgender people frustrates the treatment of gender dysphoria by preventing transgender individuals from living openly in accordance with their true gender identity and impeding access to needed medical care. Experiencing discrimination in one of the most important aspects of adult life—employment—makes it nearly impossible to live in full congruence with one’s gender identity. The fear of facing such discrimination alone can prompt transgender individuals to hide their gender identity, directly thwarting the goal of social transition…. Lack of treatment, in turn, increases the rate of negative mental health outcomes, substance abuse, and suicide.” The brief was not cited in the opinions in the case.
This decision is likely to have great impact on many aspects of American life. In the employment area, it is now a matter of course that employers may not discriminate based on orientation or identity in any employment decisions including hiring, firing, compensation, fringe benefits, etc. Harassment based on identity or orientation may similarly be an employment law violation. The decision also likely means that giving employment preferences to gay employees would now be as illegal as would be giving preferences to straight employees. (Limited exceptions, notably to some religious organization employees, are not included in anti-discrimination laws.)22
The importance of the decision goes well beyond employment, however. More than 100 federal statutes are in place that prohibit “discrimination because of sex.” It is now likely that these statutes will be interpreted as prohibiting discrimination related to sexual orientation and identification.
Additional cases of interest
HIV/AIDS International Program
A major US program fighting HIV/AIDS worldwide—the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (aka the Leadership Act)—has provided billions of dollars to agencies abroad.23 Nongovernmental organizations (NGOs) receiving funds under the program must agree to have a “policy explicitly opposing prostitution and sex trafficking” (known as the “Policy Requirement”). Some grant recipients in foreign countries, generally affiliates of US NGOs, do not want to have such a policy and challenged the policy requirement as a violation of First Amendment right of free speech. The Court held that it is a well-settled principle that “foreign citizens outside US territory do not possess rights under the US Constitution.”24 Nor do organizations become entitled to such rights as a result of an affiliation with US organizations. This decision means that foreign organizations are free not to have the required policies, but they will be ineligible for funds under the Leadership Act.
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