Tara-Lloyd Burton, PhD.

Professor Emeritus, School of Public Affairs , University of Colorado Denver

July 6, 2020


The late Rev. Dr. Martin Luther King Jr. once observed, “The arc of the moral universe is long, but it bends toward justice”. Abolitionist and freedom theology pastors like him have been using such imagery since before the Civil War, calling out America for failing to embody in practice the ideals of freedom and equal justice under law written into its founding documents.

Rev. King also envisioned a summit—a mountaintop—which he told supporters just before his assassination in 1968 that he might not attain with them, but that they would surely achieve with their courage, dedication, and effort. Stay on the path of the arc, he told them, and the view from the summit will one day be yours.

June of 2020 was a tumultuous time for the civil rights of all of us across the related ranges of sexual orientation and gender identity (referred to here as “Rainbow Rights”). But as one walking this path, last month looked to me less like Rev. King’s continuous arc than it did a trek into Colorado’s High Country. We attained a historic summit, but had hike down into a gorge beforehand. This essay is about both the gorge and summit.

The Terrain. In this metaphor, the landscape is the 1964 Civil Rights Act, passed near the height of the modern civil rights era about a half century ago. In it, a bipartisan Congress declared discriminatory treatment on the basis of race, nationality, religion, or sex to violate various sections of the U.S. 2

Constitution. It provided several ways to vindicate these rights, and imposed sanctions against those who violated them.

The Act’s coverage extended to all public and private sector organizations receiving any form of federal government financial support, to employers in the public and private sectors, and to private businesses providing public accommodation (food, lodging, entertainment).

From the 1960’s onward, two core issues have defined our legal and political discourse in the realm of civil rights: (1) what groups in American society have rights worthy of protection? and (2) how far did those rights extend?

Taking the second question first, Congress soon added non-discrimination provisions to federal funding laws for education and health care (most recently, in the Obama-era Affordable Care Act). As to the first question, in the mid-1970’s Congress added in persons with physical and developmental disabilities. They were a sympathy-arousing group: rendered disabled through no fault of their own, and suffering unwarranted discrimination as a result.

Until near the end of the last century, however, Rainbow Rights did not exist in the eyes of the law at the federal level. Until the U.S. Supreme Court’s 1993 ruling in Lawrence v. Texas, same-sex lovemaking was a criminal offense in several states. Only in the last couple of decades has society as a whole come to see the historic, discriminatory criminalization of our gendered personhood as being a civil right worthy of protection.

The question raised by the two recent legal developments covered here is whether we have coverage under federal civil rights statutes based on our sexual orientation and gender identity. The Trump administration answered in 3

the negative in rulemaking by the Department of Health and Human Services; and the Supreme Court answered in the positive just three days later.

The Gorge. June 12 of this year marked the fourth anniversary of the deadliest attack on queer people in the history of the United States: the Pulse Nightclub massacre in Orlando Florida, where nearly 50 People were murdered simply for celebrating who they were.

The Trump administration’s Department of Health and Human Services chose that very same date for publication of a rule allowing insurers, health care providers, homeless shelters, and all other facilities receiving HHS funding to deny services to clients based solely on their gender identity and sexual orientation.

Not only did this action seek to strip away our rights; it also sought to desecrate the memory of an event we pay homage to at the same time.

This rulemaking was a direct repudiation of HHS policies adopted during the Obama administration, which had extended non-discrimination protections to all Rainbow People under the Affordable Care Act.

Rainbow Rights groups immediately announced their intentions to challenge that action in court. But as of this writing, these “invitation to discriminate” rules remain in place.

The Summit. The HHS regulations were issued on a Friday. But the following Monday, a majority of the U.S. Supreme Court took up essentially the same question of law—Does non-discrimination on the basis of sex include Rainbow Rights?—and came to the exact opposite conclusion. 4

The high court had heard three cases on consolidated appeal: Bostock v. Clayton County, Georgia; Altitude Express v. Zarda; and Harris Funeral Homes v. EEOC [referred to collectively as the Bostock decision].

Gerald Bostock and Donald Zarda were both openly gay men whose employers fired them once their sexual orientation became known. In the Harris Funeral Homes case, a well-regarded employee who had been hired as a man discovered their inner womanhood, and after two years announced that they would be transitioning outwardly to harmonize with who they knew themselves to be inwardly.

The employer thereupon fired them for being transgender. Aimee Stephens, the employee, passed away during the course of the litigation; but the U.S. Equal Employment Opportunity Commission (EEOC) brought the case forward to vindicate not only her rights but those of all other trans folk the Commission might later represent.

The 6-3 majority opinion, written by Justice Neil Gorsuch, states affirmatively:

[In Title VII of the Civil Rights Act], Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. 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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

What this means is that if Gerald Bostock and Donald Zarda had been heterosexual women attracted to and in relationships with men, they would not have been fired. Bostock and Zarda were fired because they were men who loved other men. 5

Likewise, had Aimee Stephens been a cisgender woman presenting as such, she would not have been fired. She was not fired because she was a woman. She was fired for (in the eyes of her employer) being a man who became a woman. She was fired for ceasing to be the man the employers thought they had hired.

The dissenting views of justices Alito, Kavanaugh, and Thomas share a common theme—a sense of ideological betrayal by Gorsuch and Roberts. How could their fellow conservatives possibly read the Act so literally? Surely, they argued, it’s plain to see that Congress in 1964 was only trying to keep women from being denied employment, paid less, subjected to inferior working conditions, or denied opportunities for advancement based on their sex.

Rainbow rights were hardly a blip on the political radar in 1964 (five years before Stonewall), the dissenters argued. So there’s no way Congress could have intended these rights to even exist.

But it turns out that the dissenters’ memories of the Court’s own past decisions were selective. In its 1978 Bakke decision, the Supreme Court had ruled that when Congress crafted civil rights laws outlawing discrimination on the basis of race, it meant exactly what it said.

Alan Bakke was an applicant to the medical school at the University of California, Davis. Because people of color were so radically under-represented in the student bodies of the state’s publicly funded medical schools relative to their percentage of the state’s population, UC had instituted a quota-based admissions system. The intention of the program was to make public medical school student bodies more reflective of California’s ethnic diversity.

As a rejected white applicant with higher medical aptitude test scores and a better academic record than some students of color who were admitted, Bakke argued that the sole reason for his being denied medical school admission was his race.

A majority of the court in Bakke agreed. Though they acknowledged that the state had a compelling interest in making its professional school student bodies more reflective of its demographics, they ruled that basing admissions decisions on race alone violated the nation’s civil rights laws.

Even though dissenters argued that the act was only intended to aid historically disadvantaged minority groups, the majority instead relied on the plain 6

language of the law. Race is race, they said, regardless of the skin color of the aggrieved plaintiff.

So too did the majority rule in Bostock. Sex is sex. People who suffer discrimination by reason of their sexual orientation or gender identity are no less deserving of protection than the cisgender women Congress may or may not have had solely in mind in 1964. Whether or not Congress in 1964 envisioned a future in which it would be Rainbow Rights on the legal chopping block, it plainly said that sex and gender cannot be bases for the denial of fundamental civil rights.

The Summit and Beyond. By any measure, Bostock is a big deal. Rainbow Rights advocates are going to court right now using this decision as a foundational starting point for blocking and overturning every rulemaking of Trump administration agencies to the contrary—including the June 12 HHS rules denying us freedom from discrimination in HHS-funded health care and social service facilities.

The view from the Bostock summit is indeed breathtaking—certainly on a par with earlier high court rulings legitimizing same-sex marriages, for instance. However, attaining these summits in court would not be quite as risky and difficult if we could get Rainbow Rights written into Congressional enactments.

What the HHS regulations on the one hand and the Bostock decision on the other show is that as long as Congress remains silent on whether Rainbow Rights should be written into our federal civil rights statutes, the agencies and the courts are left to wing it on just how much protection our civil rights should be afforded, or if they should even be recognized.

Our rights need to be written into federal civil rights laws, so both the agencies and the courts understand that Congress intends our rights to be on equal footing with every other category of people protected by our civil rights laws.