Missouri attorney general Erich Schmitt, the Department of Justice, and the Trump Administration’s decisions to file amicus curiae briefs in the Express Altitude, Inc. v. Zarda and R.G. & G.R. Funeral Homes, Inc. v. Equal Employment Opportunity Commission (EEOC) supreme court cases was abhorrent, and the facts and arguments the cases were based upon were often poorly thought out.
In the brief filed by Schmitt, he along with the other signing attorneys general argue that if the court rules that employees can be refused a job or fired for their sexual orientation or gender identity, the court would be encroaching on a state’s liberties to make their own laws on this issue. This argument is illogical, because the Title VII already has removed the states’ rights to decide whether or not individuals can be fired on the basis of sex, race or national origin. The only question is whether or not the protection “on the basis of … sex” extends to sexual orientation or gender identity.
Outside of that, precedent states that “on the basis of … sex” can include stereotypes based on sex. An obvious stereotype for a person of one sex is the expectation that they will date people of the opposite sex. Since this stereotype is based on sex, then it too should have an extended protection under Title VII.
Further, in the brief, Schmitt argues that discrimination under Title VII only occurs if someone of the opposite sex who is similarly situated would be treated differently under the statute. For example, think of two gay individuals who are dating, for under Schmitt’s argument, they should not be protected under Title VII. A person of the same age, education and background but who is of the opposite sex also is dating, but they are dating someone of the opposite sex to their own. They are protected under Title VII, because they are of the opposite sex, despite otherwise being similarly situated.
Schmitt argues that whether or not the similarly situated person of the opposite sex is gay or not is pertinent to determining if they are similarly situated. This is something that should not be taken into account at all, because who someone is dating would not affect either individual’s ability to perform the expected task.
Beyond any legal arguments over Title VII, it was incorrect for Schmitt, or anyone else who cosigned the brief, to file the brief in this case in defence of the homophobic and transphobic interpretation of Title VII. No state, or individual, is required to submit briefs in supreme court cases. Schmitt made the concious case to affix his name, and by proxy that of Missouri, to the brief arguing against gay and transgender liberties.
The fact that this is clearly how filing such a brief would appear is evident from the fact that the brief included a paragaph directly addressing this concern, which read: “The question presented in these cases is not whether federal law should prohibit discrimination based on sexual orientation or gender identity. That is a question on which there is a wide divergence of opinion, and one on which this brief takes no position,” but that is inherently false. By filing the brief at all, a position is taken on the issue, especially as much of the brief is spent directly arguing that question.
In the past few years, hate crimes against gay and transgender people have surged, comfortability amongst the general public with gay relationships has dropped, and the number of prosecutions for hate crimes against the LGBTQ+ community have dropped dramatically. Statutory protections are needed to prevent people being treated as second class citizens over their sexual orientation or gender identity. Missouri has failed to do so, the federal government has failed to do so, and thus it falls on the courts, as it did during Obergefell, to provide those protections.
The supreme court must rule to provide those protections, both because the statute’s language can clearly be interpreted to provide those protections, but also because the other levels and branches of governments have failed to do so, or have actively fought to maintain the de facto discrimination occuring under the pretence of religious liberty. Further, states should not only pass laws themselves providing these protections, but should actively support their constituents who are being discriminated against based on sexual orientation or gender identity by not fighting against protections for them under Title VII.