Everyone collectively shudders to think of the day a manager or boss issues that pink slip, ensuring a rough transition to unemployment and a tougher time getting up from that. But, just imagine what it must be like for a gay, or trans, person. One need look no further than recent events involving WWL Radio host Seth Dunlap to see the level of discrimination still experienced by the LGBTQ community at work. In fact, according to a study from Glassdoor.com, “…more than half (53 percent) of LGBTQ employees reported that they have experienced or witnessed anti-LGBTQ comments by co-workers. Perhaps as a result of this prejudice, 43 percent of LGBTQ employees say they feel they are not fully ‘out’ at work, with 47 percent of LGBTQ respondents saying that they believed being out at work could hurt their career, such as causing them to lose a job, get passed over for a promotion, or miss out on a key project.”
It’s clear from this data alone that the fight to improve labor practices, and yes, law, continues. Thus far, only 21 States have workplace discrimination statutes for scenarios involving sexual orientation and gender identity – Louisiana is not one of them. Earlier this year, The Equality Act passed the U.S. House of Representatives but is currently sitting in the Senate, waiting for consideration.
The act, if passed, would define on a Federal level multiple terms and clarify Title VII of the Civil Rights Act to include protections based on gender identity and sexual orientation, among other details. Now, while this is a country where gay marriage is legal, it’s also a place where restrictions and prohibitions are being levied against many groups of people, including the LGBTQ community.
In October, the Supreme Court will rule on whether or not employers can fire someone based on their preferences and identity. The Trump White House has chimed in, presenting an Amicus Brief to the court, citing “ambiguity” in the definition and wording of listed terms. There’s speculation about the President’s potentially true intentions here, but at the end of it all, lives and families are on the line in what amounts to a petty game of tag football between two parties.
While it’s not one of the cases cited or included in the upcoming SCOTUS hearing, we at Big Easy Magazine interviewed David Baldwin about his case which helped set precedent, Baldwin v. Dept. of Transportation. Back then, he was quoted as saying:
“I have less enthusiasm for political solutions in the current congress just because of the makeup of the current house and senate. If this November brings about a sea-change of blue maybe there is hope, but currently, I feel our best shot is in the courts as with my EEOC ruling.”
As a follow-up, I asked David and his lawyer Lowell J. Kuvin a few questions about this predicament and how it relates to their case:
Bill Arceneaux: Is there ambiguity that could be interpreted from Title VII’s section on sex?
Lowell J. Kuvin: There should not be any ambiguity regarding sex as defined in Title VII because Title VII is meant to be interpreted broadly so as to offer protection for individuals and groups of individuals.
A similar argument regarding sex was used recently in Florida regarding whether pregnancy was a protected category under sex – because only females can get pregnant. The Florida Supreme Court held (See Delva v. Continental Group) that Florida’s anti-discrimination statute, which is modeled after Title VII, did, in fact, protect pregnant women based upon their sex.
The EEOC has decided in Baldwin v. Foxx that sexual orientation discrimination is covered under Title VII for federal employees. The US Supreme Court cannot, in my opinion, touch that decision, and needs to expand on the protection afforded federal employees under that decision.
BA: Are you at all surprised by the Trump administration’s brief regarding the upcoming Supreme Court cases on Title VII? What does any President have to gain by this?
David Baldwin: I am not at all surprised by the Trump administration’s actions regarding the upcoming Supreme Court cases on Title VII, but deeply disappointed. There is nothing to be gained by this move from any President and so much to lose. The entire effort is an appeal by Trump to his Evangelical Right base and is a complete contradiction to his campaign promise to the LGBTQ community that he would be their “champion.” Today’s Republican Party is virtually an anti-LGBTQ hate group as laid bare by Andy Towle in describing the 2016 GOP platform. Dan Savage also eviscerates Trump’s support by the Log Cabin Republicans in an exacting take down that clearly chronicles the absurdity of their very existence in a 2016 article that was a clear forebearer of what was to come. Outside of this group, Trump’s support by the LGBTQ community is highly marginalized. In effect, Donald Trump has proved himself to be the worst president in modern history when it comes to LGBTQ civil rights and policies expressing little or no concern for the welfare of a whole segment of the population he is sworn to protect.
Trump instead is desperately catering to an ever-shrinking base of the Evangelical Right in his bid for reelection. It is the antithesis of what our founding fathers envisioned for this country. A clear and distinct separation of church and state was established when this country was founded and this administration is attempting to destroy that and create a Republican theocracy entirely for political gain. Trump’s attorney general Bill Barr wants to bring “God’s Law” to America, choosing one religion to rule over all others, in effect to fundamentally hijack our democracy. This nation has uniquely been viewed as the land of the free, of many different religions, different ethnic groups, and cultures, the great melting pot for all by the entire world. Any attempt to dismantle this begins unraveling the very fabric of our democratic institutions. The First Amendment to the U.S. Constitution clearly states that everyone in the United States has the right to practice his or her own religion or to not practice any religion at all. If religion is allowed to run our government, the very essence of who we are as a nation is threatened and is a clear violation of the first amendment of the constitution. We cannot allow our country to be taken over by religious fanatics as it may be the LGBTQ community today but it could be any other targeted group tomorrow. Freely practice your religion, but keep it out of our government. James Madison, one of our founding fathers, foresaw this time and summed it up succinctly in 1803, “The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries.”
BA: Your case “Baldwin v. Department of Transportation” is one of a few others that set precedent for rights and security of LGBTQ workers in this country. With this SCOTUS challenge coming up in a few months, how do you feel the chances are that it will all be reversed? What would the next step be?
DB: This is an interesting paradox The circumstances of my 2015 case were rock solid, and the FAA’s defense of their case was amateurish at best. The decision was split along party lines of EEOC Commissioners with Chairwoman Chai Feldblum being the deciding vote. Going forward, despite a conservative court, society has evolved despite the wails of religious persecution by seemingly forever tormented Evangelical Christians. Gay marriage is the law of the land and has yet to destroy the “revolving door” sanctity of heterosexual marriage. Until the recent transgender military ban members of the LGBTQ community have served seamlessly in the military, and are an integral part of our armed forces serving in virtually every capacity. Lastly, it’s good for business, diversity is an essential core value in most major corporations and is the established norm for corporate America and hopefully, this momentum will carry the day. “A friend-of-the-court brief, which was filed July 3, has more corporate signers than any previous business brief filed to the Supreme Court on a Title VII issue, according to the Human Rights Campaign. The 206 companies in the coalition represent more than 7 million employees, a wide variety of industries, and more than $5 trillion in revenue, according to the group.”
The question now becomes, how can the Supreme Court rule against 206 companies with 7 million employees and 5 trillion in revenue, and with what arguments? It’s the proverbial showdown of good versus evil and good has the checkbook. With a flattening economy and a potential recession looming on the horizon what could be possibly gained by a ruling against business and workers, and to what end? My guess is Big Money will prevail and the whole thing win or lose can still be sold to Trump’s base as a grand effort. It’s just another Wall, and ultimately the Republican Party is going to pay for it.
Should this fail, I think it will be back to a patchwork of state laws with corporate America filling in the gaps, much like it is now. A pendulum can only swing so far right before it is forced back to the left, much as in our government. With an eventual Democratic House, Senate and Executive Branch, some version of the Equality Act will make its way through Congress and end this dark chapter in our history. I sincerely look forward to that day.
BA: How might such a reading and decision from SCOTUS affect healthcare, housing, and education of LGBTQ citizens?
LJK: While the term “sexual orientation” leads many people to think “Oh, this is an LGBTQ issue,” it really isn’t. Of course, there are LGBTQ undertones regarding the application of one’s sexual orientation to Title VII, but the idea that you cannot be discriminated regarding your healthcare, housing, education and work-based upon who you are married to applies to all individuals. When Baldwin v. Foxx was decided I read the decision and realized that you could be married on Sunday to your same sex partner (Obergefell) and then be fired from your job on Monday for doing so. That disparity of protection under the laws does not make sense, and it certainly does not give full force an effect to the Court decision in Obergefell.
BA: President Trump feels that he’s done a good job on Gay Rights. What would you tell him if given the chance?
DB: I would remind the President that he took an oath of office to preserve, protect and defend the Constitution of the United States and it is his duty to protect the rights of all citizens of this country, not just those of his base and select groups that would benefit him personally in his quest for reelection. The President made a campaign promise to be the champion of the LGBTQ community and to protect it, yet his actions are exactly the opposite. The Trump administration from day one has pursued an aggressive agenda of rolling back protections for the LGBTQ community especially transgender, all in the name of religious freedom, liberty, and blatant hypocrisy. It is unconscionable that Trump and his hand-selected inner circle of homophobic bigots are proposing policies that challenge our right to basic civil liberties such equal access to health care, to housing, to education or to fair treatment under the law. This is being done, however, against a backdrop of ever-increasing support for the LGBTQ community from business and the population at large. Trump and his minions have created a negative ripple effect that has swept throughout our society as this administration’s policies promote hate and discrimination and divide us as a nation, rather than seeking to unite us.
As President Lyndon B. Johnson said in the 1960s to a young Bill Moyers: “If you can convince the lowest white man he’s better than the best-colored man, he won’t notice you’re picking his pocket. Hell, give him somebody to look down on, and he’ll empty his pockets for you.” The late Jerry Falwell, founder of the Moral Majority, and a well known homophobic Baptist minister followed the same playbook. He demonizing the LGBTQ community in much the same way and offered a new sacrifice for people to hate and blame the ills of their lives on, all to build a hate-filled political-religious organization with no regard for the horrific consequences it had on the lives of others. Donald Trump has simply latched onto the same “hate bandwagon” but is being confronted with a much-changed and evolved electorate that are challenging his anachronistic views. I submit to this President that a backlash is building in this country to the “wall of hate and intolerance” that this administration has fomented against our community, and others, that will play out in the 2020 election cycle much as it did in 2018, and the Republican party will pay for it!
On October 8, 2019, three cases come before SCOTUS that directly affect every member of the LGBTQ community in far-reaching ways. The Bostock and Zarda cases have been combined and will consider whether Title VII protections extend to discrimination based on sexual orientation, and rely in part on my July 15, 2015, decision, Baldwin VS Dept of Transportation, as an element of their cases. The Trump administration quite simply is promoting that an employer should be able to fire an employee simply because they are gay and explicitly that they are not covered by Title VII. This view also is not supported by an ever-increasing number of Americans and big business and hopefully, this will help bring these cases forward to a successful conclusion.
I would like to offer everyone the following “test” to see where you are in this historic time before us all. Imagine, if you will, that you have been horribly injured in some mishap and you are wheeled into a Level One Trauma Center ER, your life force is ebbing and is literally pouring out of you onto the hospital floor. A top-notch medical team descends upon you with years of hard-earned training and experience behind them, desperately trying to save your life. In that moment are you concerned about the sexual orientation of any member of that medical team, or is your ONLY concern that they are the best in the business and can save your life? How about the fireman racing into your burning home to save your child’s life, or the policeman that saves you from a gunman trying to take your life? The answer to most rational adults is obvious, but if you apply a different standard to any other profession when your life isn’t on the line, then YOU are part of the problem! If you don’t like the way that makes you feel, then rinse lather repeat, and take that test again and see yourself in any one of those scenarios. When you change the way you think you can change your world and that of those around you in a really positive and profound way. Exclusion and discrimination have never worked in our society as so many different ethnic groups have experienced and pushed back against. In a time of national crisis in WWII, we came together as a nation in very unique ways. Women became welders and shipbuilders, black men became the highly successful fighter pilots of the Tuskegee Airmen and we evolved and grew as a nation because of it.
In closing, I would like to offer this quote from one of my favorite characters, the late great Fred Gwynne in his role as Herman Munster addressing young Eddie about a life lesson, clearly ahead of its time.
“The lesson I want you to learn is that it doesn’t matter what you look like. You could be tall or short, or fat or thin, or ugly, or handsome..like your father..or you can be black or yellow or white, it does not matter. What matters is the size of your heart, and the strength of your character.”
We are all born into this world as we are and do not need to be fixed or converted any more than someone born left-handed or with beautiful red hair. Each of us are divine creations in our own unique way and when we are finally able to accept one another and celebrate our differences as such, we will finally be able to move forward as a society.
Be like Herman!
Certainly, everyone hopes that the better angels at SCOTUS will favor our brothers and sisters in labor and love, but in truth, anything can happen. An Act(ion) on Equality from the Senate would be nice, indeed.
Bill Arceneaux has been an independent writer and film critic in the New Orleans area since 2011, working with outlets like Film Threat, DIG Baton Rouge, Crosstown Conversations, and Occupy. He is a member of the Southeastern Film Critics Association and is Rotten Tomatoes approved. Follow him on Twitter: @billreviews