By John Dayton, J.D., Ed. D.
Equality is a founding American principle. The nation began with these words in our Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal” challenging Americans to make these ideals of equality a reality.
The national march toward greater justice and equality, however, has been a long and painful journey. It has been a voyage that took us through a civil war that was resolved in the Civil War Amendments (abolishing slavery and recognizing the equal protection of the laws for all persons); through the Civil Rights Movement and the resulting Civil Rights Act of 1964 (including Title VII’s protections against employment discrimination); to our current and ongoing struggles for greater justice and equality.
Progress has been slow, incremental, and imperfect. But America has made progress. Americans can now add two more notable steps forward toward greater justice and equality: The U.S. Supreme Court’s recent decision in Bostock v. Clayton County, Georgia; and the Atlanta-based U.S. Eleventh Circuit Court of Appeals’ recent decision in Adams v. School Board of St. Johns County.
In Bostock the U.S. Supreme Court addressed whether LGBTQ+ employees were protected from employment discrimination under Title VII of the Civil Rights Act of 1964. The Court addressed three consolidated cases in Bostock. All three cases had in common that the employees were in good standing until their employers learned they were either gay or transgender. They were subsequently fired solely for their LGBTQ+ status.
Prior to the Court’s decision in Bostock, whether LGBTQ+ employees were protected from discrimination under federal law, specifically Title VII, was unclear. State and local protections were also lacking in much of the nation. Before the Court’s decision in Bostock, in July 2020, only 21 states and less than 300 cities and counties prohibited workplace discrimination against LGBTQ+ employees.
Georgia had no state level protections. Gerald Bostock, a Georgia resident and the lead plaintiff in Bostock, was told by federal courts in Georgia that he was not protected from being fired from his public service job because he was gay. Despite his 10 years of excellent job performance, his supervisors deemed his being gay as conduct “unbecoming” a government employee and Mr. Bostock was fired. It was a clear act of bigotry, but not unlawful according to lower courts in Georgia.
In a 6-3 opinion written by Justice Gorsuch, however, the U.S. Supreme Court overruled lower courts holding that: “An employer who fires an individual merely for being gay or transgender defies the law.” The Court held that LGBTQ+ employees are protected from employment discrimination under Title VII of the Civil Rights Act of 1964.
After Bostock it is now well-established law that an employer subject to Title VII, public or private, may not discriminate against applicants or employees based on their LGBTQ+ status, as doing so violates Title VII’s prohibition against employment discrimination. Individuals’ LGBTQ+ status is irrelevant to their abilities to perform required work duties. Employment decisions based on LGBTQ+ status are therefore unlawful discrimination under Title VII, just like discrimination based on race, color, gender, or national origin, are irrelevant to employees’ abilities to perform required work duties.
Bostock was an historic civil rights victory for LGBTQ+ employees and all Americans, moving us toward greater justice and equality. It was neither just nor equal that LGBTQ+ employees were not protected by Title VII and were subject to firing from their essential livelihoods simply for living their lives as themselves.
After Bostock, no employer subject to Title VII can lawfully discriminate in employment against LGBTQ+ persons in hiring, evaluations, assignments, dismissals, pay, or any other terms, conditions, or privileges of employment, providing LGBTQ+ employees with the same protections against discrimination afforded to other employees in the U.S.
But the reach of the Court’s decision in Bostock extends much further than Title VII and employment. For example, the Court’s interpretation of Title VII in Bostock is likely to impact interpretations of Title IX, which protects students from discrimination based on sex in educational institutions receiving federal funding. Title VII and Title IX protect the same core rights to equal protection of the laws, and courts have used Title VII to guide Title IX interpretations.
Only weeks after the U.S. Supreme Court’s decision in Bostock, the U.S. Eleventh Circuit Court of Appeals (whose decisions are binding law in Alabama; Florida; and Georgia) followed the U.S. Supreme Court’s Bostock interpretation of Title VII in interpreting Title IX in Adams v. School Board of St. Johns County.
Adams was a case about the rights of transgender children under Title IX. Not every child’s true gender identity corresponds with the gender assigned at birth. As they mature some children experience great stress as they realize who they really are was not accurately reflected in their birth gender assignment. The court in Adams noted these children are generally diagnosed with “gender dysphoria, a condition of debilitating distress and anxiety resulting from the incongruence between an individual’s gender identity and birth-assigned sex.”
A transgender boy is a boy. A transgender girl is a girl. Failing to respect this reality is reducing the full complexity of another human’s identity to a judgment call about their genitals at birth. Nonetheless, transgender children commonly face discrimination because of the ignorance of others, resulting in high rates of anxiety, depression, and suicide for transgender children. An essential part of their well-being and safety involves having their gender identities accepted and respected by their parents, teachers, and peers.
The plaintiff in Adams, Drew Adams, was a transgender boy and public high school student. In addition to having to manage the many challenges of his gender transition, school officials imposed significant harm on Drew by refusing to allow Drew to use restroom facilities consistent with his gender identity as requested by Drew, his family, and healthcare providers. As the court noted “Mr. Adams . . . suffered harm because he was separated from his peers in single-stall restroom facilities. Mr. Adams explained it felt like a ‘walk of shame’ when he had to walk past the communal restrooms for a single-stall, gender-neutral restroom. It heightened the stigma he felt for being transgender.”
In finding the school’s conduct in violation of Title IX the court declared: “A public school may not punish its students for gender nonconformity. Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use. The evidence at trial confirms that Mr. Adams suffered both these indignities.”
Although school district officials attempted to argue well-worn culture wars themed defenses concerning the asserted dangers of allowing transgender students to use restrooms consistent with their gender identities, the court found these defenses baseless. Hysterical speculation is not evidence. Further, underlying the baseless assertions against transgender children is bigotry rooted in false assumptions that gender non-conformity can be equated with sexual perversion and criminal conduct, a bigoted trope long used to demonize LGBTQ+ persons and to justify discrimination, hate, and violence against LGBTQ+ persons.
When the culture wars politics and fear are stripped away, there is no credible evidence that transgender students threaten the safety or privacy of others. Instead, the court noted Mr. Adams entered a restroom stall, used the restroom, washed his hands, and left, posing no danger to anyone. Accordingly courts have repeatedly rejected these frantic assertions of dangerous transgender children running amuck in school restrooms as without merit. To the contrary evidence suggests not allowing transgender children to use restrooms consistent with their gender identities presents significant threats to the safety and well-being of transgender children who are already too commonly harassed, bullied, and attacked in schools. The court declared:
There is only one dispute about Mr. Adams’s Title IX claim: whether excluding Mr. Adams from the boys’ bathroom amounts to sex discrimination in violation of the statute. We conclude that this policy of exclusion constitutes discrimination. First, Title IX protects students from discrimination based on their transgender status. And second, the School District treated Mr. Adams differently because he was transgender, and this different treatment caused him harm. Finally, nothing in Title IX’s regulations or any administrative guidance on Title IX excuses the School Board’s discriminatory policy . . . With Bostock’s guidance, we conclude that Title IX, like Title VII, prohibits discrimination against a person because he is transgender, because this constitutes discrimination based on sex . . . The record leaves no doubt that Mr. Adams suffered harm from this differential treatment. Mr. Adams introduced expert testimony that many transgender people experience the “debilitating distress and anxiety” of gender dysphoria, which is alleviated by using restrooms consistent with their gender identity, among other measures . . . Mr. Adams testified that, because of the policy, “I know that the school sees me as less of a person, less of a boy, certainly, than my peers.”
The court noted: “Every court of appeals to consider bathroom policies like the School District’s agrees that such policies violate Title IX” and recognized “Bostock confirmed that workplace discrimination against transgender people is contrary to law. Neither should this discrimination be tolerated in schools.” The court found that “the School Board’s bathroom policy, as applied to Mr. Adams, singled him out for different treatment because of his transgender status. It caused him psychological and dignitary harm.” The Eleventh Circuit Court of Appeals, with jurisdiction over Alabama, Florida, and Georgia, held that transgender students have a legal right to use public facilities consistent with their gender identities.
Historically there were dire warnings about the dangers of racial desegregation; women’s rights; the rights of persons with disabilities; and every group that has received legal recognition of their human rights to equality. There are always those who prefer their own privilege to equality for all, and who will claim that this group is not deserving of equal legal rights and human dignity. They are always wrong, and history always proves them wrong.
Although much remains to be done, the days of lawful discrimination against LGBTQ+ persons are thankfully coming to a close as the equal rights of LGBTQ+ persons are increasingly recognized and protected by law. This is cause for celebration for everyone. A nation that is more equal is a nation that is more just and free for everyone. The American Dream is one of liberty, justice, and equality. What could be more American than expanding our liberty, justice, and equality? The court decisions in Bostock and Adams are a step forward for all Americans.
John Dayton is a lawyer, civil rights activist and professor at the University of Georgia who resides in Athens.