LGBTQ+ Rights Require Legislation, Not Court Cases

  • November 24, 2020
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Court Cases aren’t enough; the LGBTQ+ community needs legislation – Democratic Article

A few weeks ago, I wrote about the frustration of equating sex and gender. What I hadn’t mentioned is that sex is also not sexuality. This is something that the Supreme Court disagrees with; or, at least for purposes of the law, decided it doesn’t matter. 

In June 2020, amidst the tussle of a nation defining campaign, the Supreme Court made a landmark ruling for LGBTQ+ rights. At issue was whether the term “sex” in the drafting of Article VII of the Civil Rights Act 1964 protected homosexual and bisexual employees. The Justices had to decide what “sex” meant; deciding whether or not it encompassed anything more than an individual’s biological features.

The case in question, Bowstock vs Clayton Country, saw a gay man fired as a teacher after being discovered to be part of a Gay Men’s Baseball team. Ultimately, the bench decided 6-3 in favour of Bowstock, affirming that “Sex” included sexuality, just as previous decisions had expanded it to include gender stereotyping and transitioning individuals.

The decision in Bowstock vs Clayton County is no doubt a win for LGBTQ+ activists, but it is bittersweet. It is evident that the protections afforded to them are only handed through the benevolence of courts, not through legislative efforts. 

Under Article VII, post-decision, an employer can’t use sexuality as a basis for employment decisions, whether it be hiring, firing or promotion. But, this decision hangs on the Justices of the Supreme Court widening the scope of the word “sex” in unhelpful ways to the overall agenda of recognition for LGBTQ+ individuals. 

Prior to the ruling, 33 states had some form of protections for LGBTQ+ workers. However, they varied in scope, with some only protecting public employment. In the 17 others, it was legal to dismiss an employee because they were trans*, gay or bisexual. Now, the courts have deemed that sexuality is encompassed in the ‘protected classes’, such as women and race. While this won’t stop people using sexuality – just like the continued prevalence of race and gender discrimination – it will provide an avenue for recourse for those wronged. 

The frustrating thing is that as easily as this right was given, it can be taken away. The threats to the sanctity of American precedence have never been more worrisome. With the elevation of Coney-Barrett, and the conservative wing claiming a majority, decades of legal progress could disappear. Roe vs Wade (abortion access), Obergefell v. Hodges (same-sex marriage), DACA, the ACA; they all could be overturned. The power of the US Supreme Court is amplified by the inaction of the nation’s legislators, which will soon become evident.

Trump’s greatest legacy will be the flooding of the judicial branch of the US government with conservative appointees. The nation’s legislators, both republican and democratic, must wake up to the fact that governance through judicial precedent is an ineffective way to achieve lasting change. 

It is an insult to win rights on a technicality. There should be no doubt that equality stretches to all those within a society with no room for bigoted interpretations. Without explicit protections outlined in codified law, the possibility of regress is ever imminent. While the justices have been praised for their legal skill in the Bowstock Decision, the rights and livelihoods of millions should not depend on the inclinations of individual judges. They should be protected and enshrined in clear, defined, legislated law.

I truly believe that real change for the LGBTQ+ community will not be achieved until there is a constitutional amendment affirming their rights. There should be no ambiguity; no corner of the law left for discrimination to manifest in – and trust me there are. Adoption, pension rights, acknowledgement of foreign marriage or adoptions, right to change gender and so on. The bar for this is high, but not insurmountable. To achieve it requires minority groups who have some rights handed to them to not become complacent.

Some say that privilege is not having to fight for your right to live; I believe true privilege is knowing that once you’ve got it, it won’t be taken away. The fight for equality does not cease until efforts to remove those rights ceases first. 

Written by Democratic Writer, Daniel Jones

Point of Information

It’s a nuanced issue – A Republican Response

Initially, reading this article made me want to put my libertarian hat on and disagree strongly. However, Daniel outlines his points very clearly.  I believe that courts should not be able to reverse past rulings; especially in cases such as abortion laws or LGBTQ+ protections. However, this also strongly depends on whether the issue is constitutional or not. The constitution allows a lot of freedom of interpretation in certain factors – that’s not always good.

The example used by Daniel where the teacher got fired for being gay is a perfect example of why these protections should be in place. These are basic rights that should be given to everyone. And even though the libertarian argument of allowing people to hire and fire whoever they want rings true, I can’t stop but think about the fact that in the US, people have also been fired for being conservative. These things cannot keep happening. I believe that stronger worker protections should be in place, maybe instead of protected groups.

There is always a difference between public or private employment and in certain cases; one will be protected when working for a public employer but not when working for a private company, which is simply not fair. I believe that the Supreme Court should be an apolitical entity but that’s probably too much to ask for. The US seems to be struggling with being able to implement reforms but sometimes they are needed to ensure that people have their rights.

Written by Republican Writer, Dinah Kolka

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The Power of the Courts vs the Power of the Legislature – A Foreign Perspective

To me, what this article highlights most is that the Supreme Court, on social issues at least, is more powerful than Congress. The fact that it was the Supreme Court that set the precedent for allowing abortions, same-sex marriage, etc. This is because the US is a system where anyone and everyone can challenge the law; the Court’s results can either validate or invalidate that law.

Until the Courts lose the power to change the law, there will never be any meaningful protection for any social right. They should only advise the legislature, not overturn the law as expressed by the will of the people and those they have elected. There needs to be an extra check between the power of the court and the law. Funnily enough, the court constitutionally speaking doesn’t have the power of judicial review. That was given to them by themselves in the case Marbury vs Madison (1803) and Fletcher vs Peck (1810). But if a politician brings that up, they’d probably be called a heretic and voted out of office.

My colleague remarks that the sanctity of precedent is about to breached with the appointment of Coney-Barret. I agree. The Constitution hasn’t changed in ways that would affect the previous rulings, so there is no need to revisit these topics. Except perhaps in the case of the ACA in which the act itself was changed. Precedent needs to be reaffirmed as something that shouldn’t be broken unless there has been a change compared to last time.

The legislature in the US suffers because often it is a split body; it needs the president to sign off laws. This means that Congress can also be split. Between 1969 and 2013 there were 22 years of divided government, plus that under Obama and Trump means that it is ineffective in signing off on social law. With this kind of gridlock, laws take a long time to pass, meaning that social values take time to change. Not only this but the same problem is replicated in the state governments.

I agree with the conclusion that unless the Constitution itself changes to accommodate the social advances they will always be under threat by someone. However, I do not think that change will happen any time soon. Court cases aren’t enough; there needs to be a constitutional amendment.

Written by Foreign Perspective Writer, Kieran Burt

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Daniel Jones
Junior Liberal Writer at | Website

I’m a queer loving feminist liberal, enough to make a hard-line conservative have an aneurism. I have been forced to this position having grown up witnessing and experiencing injustice first-hand. Politics sort of came to me, which it does if you are anything but a cis-white-heterosexual man. My life and the way I wanted to live it was unavoidably political, so I may as well get involved.

Dinah Kolka
Junior Conservative writer at | Website

My name is Dinah Kolka and I am going into the first year of Journalism at Napier University in Edinburgh. Recently, I graduated from Edinburgh College with an HNC in Media and Communications. This ignited my interest in politics and journalism.

Kieran Burt
Conservative writer at | Website

Hello, my name is Kieran Burt and I am going into second year at Nottingham Trent University studying Politics and International Relations. I first developed an interest in politics through reading the Dictator’s Handbook by Alastair Smith and Bruce Bueno de Mesquita, when I was 16, and have furthered my interest by studying politics at A level and now at university.

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