Saturday, October 1, 2022

A Rainbow in the Sky

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In a momentous ruling, the Court has protected employees from being fired for their sexual orientation. It comes at a time when healthcare workers are allowed to discriminate against such people.

By Kenneth Tiven

Americans with various sexual preferences won an unexpected victory in the United States Supreme Court with a 6-3 ruling. According to it, federal civil rights laws protect Americans from being fired from work if an employer opposes their sexual inclination.

The decision in Bostock v. Clayton County was written by Justice Neil Gorsuch, a Trump appointee with a strong conservative sensibility, based on his textual interpretation of the US Constitution. Joined by Chief Justice John Roberts, these two votes along with the four justices considered as liberals on social issues carried the day. Left fuming were Justices Samuel Alito and Clarence Thomas. The newest jurist, Brett Kavanaugh, agreed, but was more measured, arguing that the Court should have let the Congress handle a matter of such importance.

Textualists in US judicial circles means rulings are based on exactly what the law says as written, not on what its proponents or writers might have said or intended at the time it became law. The Justice Department backed the idea that sexual preference was never a part of the law, but President Donald Trump shrugged the ruling off publicly.

Many of his most conservative backers, especially those claiming religious beliefs for discriminating against gay, lesbian, bisexual and transgender people, were not quiet.

The outrage was quick and lacked any subtlety. They called it “a grave threat to religious liberty”, suggesting that white evangelicals, having been betrayed, would not bother re-electing Trump. They said: “Roberts no longer pretends to be a judge; now Justice Gorsuch has left his robe behind as well.”

Their belief in a single morality is crystal clear. If anything, it was amplified by having five conservative judges and a bellicose president on matters of conscience. Yet, anything that contradicts the right’s perspective is a surprise. America’s workplace accommodated same sex marriages. Those obsessed with sexual morality clearly do not dominate life or apply it to Republicans equally as to others. Social conservatism isn’t the same as economic conservatism in American politics of the 21st century.

The 29-page opinion was breezy in style. Justice Gorsuch wrote: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision.” And he added: “It is impossible to discriminate against a person for being homosexual or without discriminating against that individual based on sex.”

He explained it this way: Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions he tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a cause of his discharge.

Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalises a person identified as male at birth for traits or actions that are tolerated in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

Justice Gorsuch kept his opinion quite short, obviously believing his proposition was self-evident with little need to elaborate. He cited several precedents, stretching Title VII beyond Congressional intent, including a decision prohibiting male-on-male sexual harassment.

He was dismissive of Justice Alito’s position, giving it little attention despite the rage in the 54-page dissent. Where Justice Gorsuch bothered to provide a retort, he accused him of adopting a “conversational” definition of sex and overlooking “the statute’s strict terms”. And he charged Justices Alito and Brett Kavanaugh with refusing to “enforce the plain terms of the law”, abandoning textualism in favour of a murky inquiry into what the Congress might have expected.

Social conservatives worry that churches and religious organisations will no longer be allowed to discriminate. However, multiple Supreme Court decisions have exempted religious organisations from all kinds of laws preventing discrimination. In the 2014 Hobby Lobby case, the Court even extended special privileges to private corporations who said they want to ignore the law (in that case, the Affordable Care Act’s mandate that employer-provided insurance include contraception coverage) because of the owners’ particular interpretation of their religion.

Some of this concern is absurd in the context of what else is happening in America. At the same time as the Court ruling, the Trump administration cleared the way for doctors and other healthcare professionals to discriminate based on sexual orientation. It works this way: The federal Health and Human Services Department changed the non-discrimination interpretation in the Affordable Care Act. The rule requires equal treatment regardless of race, colour, national origin, disability, age and sex.

Similar to what the Supreme Court just decided, the Obama administration had used a broad definition of “sex” to ensure that transgender, gay and lesbian people would be covered. Now the rule is redefined as “the plain meaning of the word ‘sex’ as male or female and as determined by biology”. Sexual orientation no longer is a protected category.

Are physicians and other healthcare professionals willing to help people regardless of their gender identity? Obviously, many will and some will not. Proof of that is obvious at a time when millions of Americans are demonstrating for equal rights and treatment under the law.

Most of the laws were passed decades ago but circumvented by authorities who disagreed with the intent.

So, don’t expect everyone to suddenly become welcoming when it’s someone else’s civil rights. Consider it one small step for humankind in North America.

 —The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels


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