The month of June is rapidly becoming a momentous month for the LGBTQ community, both on Guam and throughout the nation. Over the past five years, the U.S. Supreme Court has handed down three decisions that have dramatically extended civil rights protections to our community. Historically, these protections were only guaranteed to heterosexuals. We need to educate our LGBTQ community about these rights and encourage members to aggressively assert them. Complacency should not be an option because too many people have sacrificed their lives, careers, and freedom in the quest for equality.
Today marks the fifth anniversary of the landmark U.S. Supreme Court decision Obergefell v. Hodges. In the Obergefell decision, the high court ruled that civil marriage is a fundamental right for all persons, regardless of their sexuality. Therefore, under the 14th Amendment’s guarantees of due process and equal protection, same-sex couples have the same right to civil marriage as heterosexual couples. Further, all states and U.S. territories must recognize same-sex marriages performed in other states and U.S. territories. It is estimated that approximately 600,000 same-sex couples have married in the United States since same-sex marriage was legalized.
Two years later, on June 26, 2017, the U.S. Supreme Court issued another important decision for the LGBTQ community, Pavan v. Smith. In Pavan, the court ruled an Arkansas law unconstitutional because it treated straight married couples differently than same-sex married couples. Under the law, a married man was automatically listed as the father of a child born during marriage, even when the husband wasn’t the biological parent. This situation most frequently arose when the woman conceived through in vitro-fertilization or through a surrogacy procedure. However, when Terrah Pavan gave birth to a child through in vitro fertilization, the Arkansas Department of Public Health refused to list Terrah’s same-sex spouse as the other parent, arguing that only a woman and a man could be listed as parents. The couple sued the public health director, claiming the refusal to list Pavan’s spouse as a parent violated the U.S. Constitution.
The U.S. Supreme Court agreed with the Pavan’s argument. In reaching its decision, the court cited the Obergefell decision and held that the Arkansas law violated the Constitution’s Due Process and the Equal Protection Clauses. The court emphasized that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’’ Therefore, a state cannot extend a privilege to a married heterosexual couple, and deny that privilege to a married same-sex couple.
And just recently, on June 15, 2020, the Supreme Court issued its bombshell decision in the case of Bostock v. Clayton County, Georgia. The Bostock decision incorporated three cases in which each plaintiff had been fired from his job merely for being gay or transgender. Gerald Bostock, a 10-year county employee, was fired when he joined a gay recreational softball league. His conduct was determined to be “unbecoming” as a county employee. Donald Zarda, a skydiving instructor, was fired after he mentioned that he was gay. And, Aimee Stephens, a six-year employee with a funeral home, was fired after she transitioned from a man to a woman. Up to this time, lower courts had ruled that U.S. states and territories were free to decide such matters on their own.
The attorneys representing the three plaintiffs argued that their clients’ firing violated federal law, specifically, Title VII of the Civil Rights Act of 1964. The law provides in part that it is “unlawful ... for any employer to fail or refuse to hire or to discharge any individual, or otherwise 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.” Therefore, the attorneys alleged, no U.S. state or territory can permit employment discrimination based on sexual identity or sexual preference.
The Supreme Court agreed and ruled that “[w]hen an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex.” The bottom line is, regardless of where you live in the United States, you cannot be denied a job, or be fired from one, merely because of your sexual identity or sexual preference.
Forces are already conspiring to undermine these three powerful decisions. As a result, the LGBTQ community must not take the advances in our fight for equality for granted. We need to be proactive. First, we need to spread the news via social media of these important decisions and what rights are now guaranteed. Second, if you have been discriminated because of your sexuality or gender preference run, don’t walk, to an attorney who handles civil rights cases. As we’ve recently seen from the Black Lives Matter protests, discrimination won’t stop unless we are willing to stop it.
Bill Pesch is an attorney at the Guam Family Law Office.