In Nebraska, gay and lesbian individuals and couples were not always allowed to adopt or foster children. Why is that? A twenty-year-old policy barred these people from receiving a state foster parent license.
And Nebraska was one of the last states to have a blatant anti-gay and/or lesbian law on the books. Truth be told, many lesbian and gay couples still face discrimination when it comes to adopting and fostering children. But the discrimination comes in different forms—But the passage of the Every Child Deserves a Family Act (“ECDFA”) is necessary to make it impossible for adoption and foster care placement agencies to discriminate “on the basis of their sexual orientation, gender identification, or marital status or on the basis of the sexual orientation or gender identity of the child involved.”
Sponsored by Atlanta’s own John Lewis, the language of the ECDFA followed guidance from the infamous Macy v. Holder. While Macy is known for affirming protections of transgender employees, it did more than that; it developed upon Price Waterhouse v. Hopkins’ finding that sex discrimination extended to gender stereotyping. However, a huge downside of Macy is that it is only an EEOC decision which means it is not binding case law, but rather, is generally given some deference. But when deference is given, it must be brought in a very particular way.
Deference to EEOC decisions can be given:
- For discrimination claims brought by federal employees, the EEOC can act as a judicial body and issue decisions itself. Therefore, Macy is binding on all federal agencies.
In Price Waterhouse, the plaintiff (Ann Hopkins) sued Price Waterhouse after the company refused to reconsider her for partnership. She claimed that Price Waterhouse’s partnership selection process invoked sex discrimination. The company’s practices resulted to only seven partners being women, even though there were 622 partners in total.
To state her claim, Hopkins used Title VII of the Civil Rights Act of 1964. Title VII states,
“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
Price Waterhouse opened the first of many doors for the interpretations and policies we see today implicitly requiring that sex discrimination includes sexual orientation, gender stereotyping, and gender identity. However, my recommendation is that federal law should explicitly include language like “gender identity, gender stereotyping, sex, and sexual orientation,” in Title VII of the Civil Rights Act of 1964. Despite the lengthy time it takes for Congress to get anything done, this amendment is the only way to ensure that individuals protected by Title VII are fully protected.
We know that the law is generally built upon stepping stones from one case to the next. Reaching the end goal of equity generally takes many years to achieve. But, that is why every victory for transgender, bisexual, gay, and lesbians is vital. Without Price Waterhouse, there very well may not have been Macy. And without Macy, which only proceeded ECDFA by a few months, it is very likely that ECDFA would not have been enacted.
Reading the plain language of statutes can only get us so far in advancing the law. Language and social norms change over time, and using this method to interpret the rule of law almost certainly creates subclasses of citizens that would never be recognized through this interpretation method.
Lawyers and law makers must use more creative means to interpret and write laws. While explicitly included transgender people in bills is fantastic and deeply desired, it is a rare occurrence to see today. Lawyers and lobbyists must do better to protect LGBTQ people, and one of the only ways to do that is with an Employment Non-Discrimination Act (“ENDA”). ENDA would prohibit hiring and employment discrimination against a person for their sexual identity and/or gender identity. These protections are vital knowing that transgender workers report unemployment at twice the rate of the rest of the population. Effecting real change for LGBTQ people must be done through legal protections or it will not happen at all. Although it is 2017, ENDA was first introduced in 1994 by the 103rd Congress, and has still not passed.
ENDA would strengthen rulings holding that Title VII protects transgender employees, but its power would not stop there.
- ENDA would educate the community about the rights of transgender employees
- It would be it unquestionable that transgender queer people are protected under the law.
- It could open the door to more cases protecting transgender queer people
ENDA could radically change the game for transgender people, and it must be passed.
Some critics will say that policy reasoning has no place in the law. But without policy reasoning pushing forward non-discrimination acts, the law would very likely never support transgender people. Policy reasoning and making the law more inclusive go hand-in-hand.
Another worry is that the counter-majoritarian dilemma will hinder the laws progression of LGBTQ rights. And that may be so. However, judicial review of the legislature generally leads to more progressive policies when dealing with civil rights. Without Loving v. Virginia or Brown v. Board of Education, it is likely that the legislature would not have evolved as quickly as it did.
Undermining Nebraska’s anti-LGBT adoption policy may have happened without momentum for LGBT rights growing, but we just don’t know. Why speculate when we can see that each queer advocacy win results in a broader reading and understanding of what the law can do? While Price Waterhouse focuses on Title VII, its implementation creates pressure on all courts to be on the right side of history. Compiling persuasive laws from different districts and quasi-judicial arenas can greatly impact Americans throughout the United States. And Nebraska’s anti-LGBT adoption policy coming down is just another example of that.