Bostock v. Clayton County and the Challenges of LGBTQ Advocacy

On October 15, Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford University and Co-Director of Stanford Law’s Supreme Court Litigation Clinic, joined Erin F. Delaney, professor of law at Northwestern Pritzker Law, in a conversation about the landmark decision in Bostock v. Clayton County.

Karlan’s oral argument during the trial helped deliver a win for the trio of LGBTQ employment discrimination cases collectively decided in Bostock.

The Supreme Court case was a consolidation of Bostock v. Clayton County, R.G. & G.R. Harris Funeral Homes v. EEOC & Aimee Stephens, and Altitude Express Inc. v. Zarda, which was Karlan’s client. She was brought on to the historic case after being approached by the American Civil Liberties Union (ACLU) and Greg Antollino,  her former student and a solo practitioner in New York who won Zarda in the court of appeals. Donald Zarda was an employee of the sky diving company Altitude Express in Long Island, New York. In 2010, he disclosed to a female patron that he was gay. After his disclosure, the woman’s boyfriend accused Zarda of inappropriate touching and the company soon fired him. Zarda argued that the patron was homophobic and that he was fired because of his sexual orientation. In 2014, while the case was making its way through state court, Zarda passed away in a base-jumping accident, but his family continued to pursue the case.

Aimee Stephens worked for the R.G. & G.R. Harris Funeral Homes in Michigan for nearly six years. After informing her employer that she was transgender, she was fired. After taking her case to the Sixth Circuit Court of Appeals with the help of the ACLU, the court ruled that “Aimee’s employer engaged in unlawful sex discrimination when it fired her because she’s transgender,” according to the ACLU. Both the Zarda and Stephens case progressed to the Supreme Court, where it was combined with the Bostock case.

Gerald Bostock was fired from his job as an official for the juvenile court system in Clayton County, Georgia. County officials claimed they fired Bostock because an audit of funds he controlled found that he misspent resources. Clayton, however, claimed the county fired him after discovering he was gay. In each of the three cases,  the employees sued and alleged sex discrimination under Title VII of the Civil Rights Act of 1964.

Northwestern Law has a unique connection to Bostock v. Clayton County. The late U.S. District Judge John F. Grady (JD ’54) ruled in a similar case, Ulane v. Eastern Airlines, which predates the Supreme Court’s landmark decision. In the 1980s, Eastern Airlines had unlawfully discriminated against pilot Karen Ulane when the airline fired her upon learning that she no longer identified as male. Ulane sued under Title VII of the Civil Rights Act of 1964. Grady ruled in her favor, stating that “sex is not a cut-and-dried matter of chromosomes,” according to court documents. Grady’s ruling in the 1983 case was the predecessor for the Supreme Court’s decision in the Boystock v. Clayton County case.

Major updates have not been made to the Civil Right Act since the 1960s, which was proposed by President John F. Kennedy and signed into law by Lyndon B. Johnson in 1964. During Karlan’s oral arguments, she defended an interpretation of the law that forbids job discrimination on the basis of sex—addressing the fundamental question of whether a person’s sex also includes sexual orientation. “The textual argument is you’re treating him differently because of his sex, in that if you define Don Zarda as a man who’s attracted to men and you say ‘Change his sex’, now he’s a woman attracted to men, would he have been fired? No. Therefore his sex controls,” she said. “A lot of people treat it as a dictionary argument. We thought that was an argument that stemmed more from the Supreme Court’s Sex-Plus discrimination claims.”

Sex-plus discrimination claims expand Title VII’s protection to subgroups of employees who are discriminated against based not just on gender, but on the combination of gender plus another characteristic. Karlan highlighted a specific case from the ‘70s, Phillips v. Martin Marietta Corporation, which made its way to the Supreme Court in 1971. In that case,  the corporation advertised that they would not hire women with pre-school age children, yet had no issue hiring men with the same-aged kids. It was the first sex discrimination case under Title VII to make it all the way to the Supreme Court. “The Court of Appeals [at the time] said that’s not sex discrimination because you’re willing to hire women, but the U.S. Supreme Court said ‘no, no, that’s sex discrimination because you’re treating a woman who has small children at home differently from a man,” Karlan explained. “That’s what [Bostock v. Clayton] case is about.”

Karlan went on to explain that during Supreme Court oral arguments it was important to present separate arguments from each client’s lawyers because each case—Bostock, Stephens, and Zarda—raised different questions, and also because sexual orientation and sex identity are two different things. “The stereotyping argument overlapped in the cases, but the other two arguments [for Aimee Stephens] didn’t overlap,” she said. Stephens’s lawyer argued that “you’re firing her because her birth certificate at birth said she was male. You would not have fired her if her birth certificate at birth said female. Therefore, definitionally that is sex discrimination.”

As the conversation came to an end, Karlan left the law students with a word of inspiration: “When I was in Law School, no one was talking about same-sex marriage. Nobody was talking about anti-discrimination laws applying to gay folks the way they apply to straight folks,” she said. “In one lifetime, you really can change the law in huge direction. You have the opportunity to change the world, and that’s a good thing.”

The event was co-hosted by OUTLaw, the American Constitution Society, the Office of Inclusion & Engagement, and the Northwestern Pritzker School of Law Alumni Association.