With any civil rights movement, there are necessarily two branches that work hand-in-hand: the activist, and the legal. In most, if not all, cases, the activist will precede any changes to the law - gay marriage was legalised long after the majority of Americans thought it acceptable, for example - and so it is often frustrating for a civil rights activist to sit back and wait for the law to catch up to a milestone they have already achieved. This post will take a look at the most consequential LGBTQ+ legal events of the past year, and consider what might come next.
Gay Marriage in Northern Ireland
As a result of the Good Friday Agreement, and the Northern Ireland Act of 1998, devolution was formally re-established in the country, and on December 2nd, 1999, devolved powers were officially granted to the legislature, known as the Northern Ireland Assembly. This followed the establishment of the Scottish Parliament and the Welsh Assembly after 1997 referendums in each of these countries, but the government of the time, led by Tony Blair, didn't see this as a way of building a constitution, but rather merely decentralisation to avoid being locked out of power for 18 years during the Thatcher and Major administrations.
The Sewel Convention, which states that the UK government should not legislate on matters devolved to the nations, was held in the case of Miller (No 1) [2017] to be purely political, and therefore not a matter for the Courts to interpret, reaffirming parliamentary sovereignty. Curiously, however, paragraph 128 of the judgment referred to the Northern Ireland Act as a product of the Good Friday Agreement, which suggests that the authority of the devolved assembly in Northern Ireland is not just derived from Westminster, but a more powerful constitutional source: the people.
The Northern Ireland Act contains one interesting device, that unintentionally had the effect of legalising gay marriage in the traditionally conservative nation: if the executive and the assembly are not currently sitting, and haven't been for some time, the Secretary of State for Northern Ireland can assume direct rule, and the Westminster Parliament can legislate for the devolved nation until the Assembly is back up and running. When the Assembly executive collapsed in January 2017, the Secretary of State refused to reinstate Westminster rule, meaning the devolved nation was now being run by civil servants, who lacked the ability to legislate.
Since 2012, the Assembly had debated equal marriage five times, but each time the motion was blocked by the DUP and the UUP, even when a majority of the Assembly supported legalisation thanks to a DUP 'petition of concern' requiring majorities in every party to support the bill. When the executive fell apart in 2017, the Secretary of State suggested that same-sex marriage could be legislated for in Northern Ireland by Westminster, even though direct rule hadn't been reimposed. Attempts to do this throughout 2018 were blocked by Christopher Chope MP (who has gained notoriety for frequently objecting to private members bills which, he says, lack sufficient scrutiny). A monumental first step was taken with the passage of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018, which described the bans on same-sex marriage and abortion in Northern Ireland as human rights violations, and directed the Westminster government to issue guidance to civil servants in regards to this.
In March of 2019, Tory peer Baron Hayward introduced an amendment to the largely unrelated Civil Partnerships, Marriages, and Deaths Bill to establish same-sex marriage in Northern Ireland, but the amendment was withdrawn after his colleague stated the government's intention to allow the devolved Assembly to legalise same-sex marriage. In July 2019, Labour MP Conor McGinn successfully attached an amendment to a Northern Ireland administrative bill which would legalise same-sex marriage after three months of passage if the Assembly remained suspended. The amendment passed 383-73 in the Commons, and was approved without a formal vote in the Lords, led by Baron Hayward. The passage of the Northern Ireland (Executive Formative etc) Act of 2019 meant that, should the Assembly remain dissolved, as it had been since 2017, gay marriage would become legal in Northern Ireland on January 13th, 2020. Despite an attempt by the DUP and the TUV to bring the Assembly back into session in October 2019 to block same-sex marriage, a broad alliance of Sinn Féin, the Alliance Party, the Greens, People Before Profit, and the SDLP, either refused to attend the session, or walked out, denying the DUP a quorum, and the plan failed.
On January 13th, 2020, gay marriage was made legal in Northern Ireland, bringing the nation into line with the rest of the United Kingdom. The first same-sex marriage took place on February 11th between Robyn Peoples and Sharni Edwards-Peoples, followed quickly by Connor Phillips and Shane Robinson a day later. Robyn told reporters after the monumental occasion that "our message to the world on our wedding day is: we are equal... We didn't set out to make history, we just fell in love."
Employment Discrimination Prohibited by the US Supreme Court
Justice Scalia was, famously, a textualist judge. This means that before he referred to context, intention, or anything else, he looked at the words written on the page, and deciphered their meaning. His 29 years on the Supreme Court of the United States were so consequential that it led Elena Kagan to declare that "we are all textualists now," and it is the textualist argument that formed the basis for the most consequential gay rights decision in the last year.
The case of Bostock v Clayton County began after Gerald Bostock was fired after he disclosed his sexuality at work. This was joined with the case of Donald Zarda v Altitude Express Inc, which saw Zarda fired after he told a female customer of his gay identity to make her feel more comfortable during a skydive. The final case was that of the Equal Employment Opportunity Commission v R.G. and G.R. Harris Funeral Homes, when Aimee Stephens wrote a letter to her employer in 2014 preparing them for her decision to undergo gender reassignment surgery and begin presenting as a female.
The Court, in a 6-3 decision, ruled that all three cases were discrimination on the basis of sexual orientation and gender identity, and therefore were necessarily also discrimination on the basis of sex, as prohibited in employment by Title VII of the Civil Rights Act 1964.
Justice Neil Gorsuch, a Trump appointee, delivered the majority opinion, which some legal commentators believed cemented his textualist identity on the Court. He said that "an employer who fired an individual for being homosexual or transgender firs that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids." In essence, a man who is attracted to other men is fired not because of his attraction, but because of his same-sex attraction; a man who presents as a woman is not fired for presenting as a woman, but because they are biologically male.
The novel approach, spearheaded by the ACLU, ushers in a new era of using existing legal protections against sex discrimination to cover the LGBTQ+ community, and so, in a sense, the activism which started with the Stonewall Riots in 1969 after succeeded the legal mechanism that was passed into law in 1964 - an interesting reversal of the statement I made in the introduction. Justice Gorsuch's opinion was joined by the Court's traditionally liberal wing, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer, along with the Court's Chief Justice John Roberts, a Bush Jr appointee.
The dissents, authored by Samuel Alito and Brett Kavanaugh, focussed on the intended meaning of the statute: that it was not in the contemplation of the 1964 Congress to protect the LGBTQ+ community, and that the Court's majority were legislating, rather than interpreting the statute in front of them. Justice Alito, joined by Clarence Thomas, called the ruling "preposterous" and "a more brazen abuse of our authority to interpret statutes is hard to recall," while Kavanaugh's separate dissent concluded that "millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and law. They have advanced powerful policy arguments and can take pride in today's result. Under the Constitution's separation of powers, however, I believe that it was Congress's role, not this Court's, to amend Title VII."
This decision may have impacts beyond simply the employment protections guaranteed by Title VII, however, as it redefines the traditional concept of 'sex' in US jurisprudence, although the change has been long in the making. The EEOC, under Obama, continually pushed this definition of sex in their decisions in Macy v Holder and Balwin v Foxx, but the US judiciary was less eager to adopt this approach, with decisions in Evans v Georgia Regional Hospital and Blum v Gulf Oil Corp from the federal courts explicitly striking down this interpretation. Therefore, this case marks the first time that the US Supreme Court has held that LGBTQ+ discrimination is akin to sex discrimination.
The ACLU, who represented Aimee Stephens, was particularly excited about the precedent that the Bostock case has perhaps set for other cases, outside employment law. The Trump administration's continued assault on the rights of LGBTQ+ Americans, and particularly the transgender community, is now under threat; in the justifications for the government's support for 'bathroom bills', permitting transgender people to be denied healthcare, and the ban on transgender people serving in the military relied on the Evans and Blum decisions, as well as the submissions put forward by Clayton County in the Bostock Case, and, since these interpretations have now been overruled, it is increasingly likely laws banning transgender people from using their preferred bathrooms or from serving in the military will similarly be overruled as discrimination on the basis of sex.
Other commentators were more dubious, however, given the fact that Gorsuch's opinion explicitly limited the precedent to the case in front of the Court on the matter of Title VII. Indeed, Gorsuch wrote "they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today but none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today." Religious groups, similarly concerned about their own discriminatory practices being at risk, are likely to be less at risk, thanks to the protection for freedom of religion in the 1st Amendment.
It is perhaps ironic that, five years before the Stonewall Protests sparked an international gay rights movement, a conservative Congressman from Virginia who had inserted the word 'sex' into Title VII in the hopes of killing the bill inadvertently led to the recognition of equal protection for the LGBTQ+ community in employment 56 years later. Gerald Bostock, the only surviving plaintiff from the joined cases, said he was "proud to take part in a role to get us to this historic moment."
Reckoning with the Gender Recognition Act
The past few years have seen a wave of support for reforming the Gender Recognition Act 2004, a landmark law which allowed individuals with gender dysphoria to change their legal gender. The law enables transgender people to apply for a 'Gender Recognition Certificate' which demonstrates that they have satisfied for legal recognition in their preferred gender. The GRC is issued by a Gender Recognition Panel, including medical and legal experts, who consider the evidence submitted by the applicant to determine whether they have a documented mental health diagnosis of gender dysphoria, among other things.
The main proposals for reforming the GRA are to 'demedicalise' the process, with the principle of self-identification. Then-Equalities Minister Justine Greening began considering such reforms in 2017, with her successor Penny Mordaunt affirming that the consultation would begin with the principle that "transgender women are women." However, the plans fell apart in April 2020, when the current Equality Minister, Liz Truss, declined to push forward with these new reforms.
Transgender individuals and their allies condemned the move by Truss, as maintaining the expensive and bureaucratic process of obtaining a medical diagnosis and approval by a panel instead of allowing people to self-identify. Depressingly, the panel would never get the opportunity to meet the person whose life and identity they will be ruling on. Despite 70% of the public in favour of such reforms, according to the government's own public consultation, the scrapping of these plans has but a dent in the movement for trans equality.
In a further damaging move, the government subsequently affirmed their intention to put in place 'safeguards' to protect single-sex spaces for women, which, while on the surface seems like a reasonable move, will have the effect of excluding transgender people from bathrooms, changing rooms, refuges, and homeless shelters. Despite the violence and discrimination already faced by the trans community, and overwhelming public support creating a compelling mandate for protecting these vulnerable people, the government has neglected to fulfill their democratic duty to serve the people, all the people, and join countries such as Iceland, Argentina, and Denmark in their embrace of the trans community.
Colm Howard Lloyd, chair of LGBT+ Conservatives, has argued that the "toxic atmosphere" perpetuated by the current inadequacies of the GRA has led to trans people fearing for their safety, and members across the House of Commons, joined by advocacy groups, women's refuges, and more have implored the government to change course. While there will inevitably always be an anti-transgender movement, currently spearheaded by author JK Rowling with the publishing of her transphobic manifesto, the mood of the British public is squarely behind the transgender community.
The women's rights movement and the transgender rights movement are not, and should not, be in conflict with one another. They are both fighting for the same goal: control over their body and respect for their identity. A toxic debate and the prejudices of high-profile individuals, including those represented in the Government, have placed a wall in the road towards transgender equality, but given the successes in the UK and the USA just in the past year, as seen in this post, there is, and still must be, hope for a kinder, more inclusive, and more equal future for the LGBTQ+ community.
Happy Pride 2020!
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Another insightful blog on a minority group. It is surprising that the fight for equal rights has been so long and so challenging. May the future be paved with more tolerance, respect and understanding.
ReplyDeleteMay I refer you to a book, which highlights the historic issues faced by a gay man in Ireland, called The Heart's Invisible Furies by John Boyne. It gives a fictionalised account of the obstacles mentioned at the beginning of this blog.
Thank you for highlighting these inequalities and Happy Pride Month
I've heard of good things about that book, and thank you for your feedback!
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