When I was an optimistic high school freshman, I tried out for the varsity swim team. Armed with Banana Boat sunscreen and a hideous two-piece bathing suit, I entered the pool woefully unaware of basic swimming technique yet determined to make varsity. Although I succeeded in making the team (too few girls tried out for the team at the tiny, all-girls Catholic school I attended for anyone to be turned away), I quickly realized swimming wasn’t my true calling. I’m certainly not an athlete.
But I am a Supreme Court geek. Even in my days as an un-athletic freshman, I skimmed Supreme Court dockets to see the cases and controversies that would be debated in the next few months. That habit has followed me to this day; even as a busy college student I still read Supreme Court blogs.
This year, the Supreme Court will decide a landmark case about employee discrimination. In 2010, Donald Zarda was fired from his job as a skydiving instructor after he revealed he was gay (he mentioned his sexuality to a female client who was strapped to him for a jump in an attempt to make her more comfortable with the close physical contact between the two). Nearly a decade and several appeals later, Altitude Express Inc. v. Zarda concerns whether the Civil Rights Act’s language protects against employment discrimination based on an individual’s sexual orientation. Legal scholars and activists are wondering whether the Supreme Court will rule in favor of protections for employers or employees.
This is not the first time the Supreme Court has considered sexuality and discrimination. In 1986, the majority opinion in Bowers v. Hardwick compared homosexual activity to “incest … and other sexual crimes” when considering the case of a police officer who had engaged in consensual sodomy; sodomy was criminalized in the state of Georgia until Bowers was overturned in 2003. In 2000, Boy Scouts v. Dale ruled that Boy Scouts of America’s decision to fire an employee because he was openly gay was protected under the First Amendment. It was reasonable, the decision reads, for the Boy Scouts of America to claim that homosexual activity was antithetical to the Boy Scouts’ mission to be “morally straight” and “clean.”
Since 1986, however, much of the legal discourse about employee discrimination has shifted to a debate about conflicting individual rights. Zarda is one of the first cases since Dale to directly address discrimination against employees. More recent cases about homosexuality and discrimination have focused on the clash between religious liberty and the individual right to privacy as opposed to the debate about whether homosexuality is morally acceptable. In some ways, it’s easy to look back on that stinging Bowers decision and view it as part of a controversial past, but the arguments made in Zarda prove things haven’t changed much.
Legal scholars who defend employers’ interests argue that “sexual orientation” isn’t a protected status in the Civil Rights Act the same way that “sex” or “age” is. It would certainly be unreasonable to expect the Supreme Court to rule on protections that have never existed. But the fundamental problem with this argument is that it ignores the interaction between sex and orientation as applied to civil rights protections.
Let’s use the word “sex” as defined in the Civil Rights Act as strictly biological sex (i.e., male or female as assigned at birth) to understand how it still applies as a protection against sexual orientation discrimination. Zarda’s biological sex certainly played a role in his employer’s decision to terminate his gay employee. If Donald Zarda had been a woman in a relationship with a man instead of a man in a relationship with a man, there would not have been a reason to fire him.
Furthermore, neither the Constitution nor existing legislation account for the cultural and social changes that create shifts in societal norms. After all, at the time of the Civil Rights Act’s passage in 1964, homosexuality was defined as a mental illness by the American Psychiatric Association. Even if sexual orientation isn’t explicitly addressed within the text of the Civil Rights Act, the logic of protections on the basis of sex allow sexual orientation discrimination to be understood as a subset of biological sex discrimination.
Beside my short tenure as a swimmer, I recall many other awkward moments from high school. I think of my younger self cringing as she changed into her new, aerodynamic one-piece, struggling to reconcile the feelings she had about herself and her own sexuality. I think about standing at the deep end of the pool, breathing in chlorine and trying not to remember that one time I found “Annie on My Mind” in the school library (it is unclear to me still how that got past the all-seeing librarian). I think of myself staring down the crucifix at the front of my sixth-period math class, wondering if I was morally straight and clean.
Zarda is not a case about religious beliefs, or about whether homosexuality is acceptable and appropriate, or about whether we should all be Christan. This is a case about an individual’s right — most importantly, the right to live without being afraid or ashamed, regardless of what they believe.
There are some things that just are in the world. Children routinely picked last for dodgeball teams are not destined to be the next Michael Phelps. The Cats movie adaptation is an abomination worthy of Leviticus. Some people are attracted to members of the same sex.
Some people who vandalize property and commit hate crimes at Pride events will continue to do so, regardless of how many court decisions tell them it’s wrong. That doesn’t mean the Supreme Court should cease to uphold LGBTQ+ rights anyway.
Allison Pujol can be reached at email@example.com.