Fired because they are gay: How is it legal in 28 states
Stacy Bailey is a teacher at an elementary school in Texas that is suing the school district for discrimination after she was suspended for discussing her sexual orientation. Because of ambiguity in Title VII of the Civil Rights Act of 1964, it is legal in 28 states to fire or suspend a person as a result of a sexual identity. Here is an overview of the controversial debate.
As hundreds of thousands of LGBT Americans and their allies to the streets to celebrate during Pride month, a case from Texas highlights the employment discrimination hurdles the community has yet to clear.
Stacy Bailey is a former teacher at Charlotte Anderson Elementary in Arlington, Texas. She continues the Mansfield Independent School District (MISD) for suspending her is for the discussion of sexual orientation in her class.
The 31-year-old teacher lives in one of the 28 states where it’s legal to suspend or fire something because of their sexual identity.
TEXAS TEACHER SUES SCHOOL DISTRICT AFTER BEING ACCUSED OF PROMOTING THE GAY AGENDA.
The school district released a statement to say they are and have always been “an inclusive, supportive work environment for LGBT staff for decades.” Action was taken against Bailey, they say, because allegedly “her actions in the classroom have changed.”
Bailey was removed from the classroom after a parent complained that she showed a picture of her and her then girlfriend-now-wife to her students.
Or the school district acted in a discriminatory manner is for a jury to decide. Regardless of the decision of the jury, MISD is perfectly within their rights to take action against someone because of their sexual identity. This is the result of a lack of clarity in Title VII of the Civil Rights Act of 1964.
What is the provisions of Title VII of the Civil Rights Act of 1964?
The statue says, “It is an unlawful employment practice for an employer… to discriminate against any person with respect to the compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
“The questions is whether ‘sex’ refers to sexual orientation and gender identity,” lawyer Sandra Mayerson told Fox News.
This question has plagued the court system for many years, but lately, some courts have reached firm decisions on the issue. Since April of 2017, the 7th and 2nd US Circuit Court of Appeals has determined that Title VII does extend to sexual orientation and gender identity by means of the sexual stereotype theory ruled by the Supreme Court in Price Waterhouse v Hopkins.
This case ruled that Title VII extends to sexual stereotypes; which means that a person cannot be punished by an employer, because they do not act, the way they have their sex “should” act. This, they argued, is a form of discrimination on the ground of sex.
The 7th Circuit used this sexual stereotyping theory to argue homosexuals can’t be penalized by the employer because they don’t behave the way they “should”, that is what they don’t have romantic relationships with people of the opposite sex.
With regard to the Bailey’s case, a similar argument can be made in its defense, Mayerson said.
“Stacy is discriminated against on the grounds of sex, since she showed a picture of her wife and if a man had shown a photo of his wife, he would not have been suspended. But a woman, with a picture of her wife was suspended, and that was why she was suspended because of her gender,” Mayerson explained.
Stacy Bailey (left) is a Texas teacher who claims she was suspended after seeing this photo of her and her friend to students.
(Credit: Julie Vazquez)
What is the size of ‘sex?’
The 11th and 6th Circuit court ruled the opposite; that “sex” has no relation to the orientation.
“Usually if there is a split in the circuits, that is, when a case is ripe for a decision of the Supreme court,” Mayerson said. However, the court has refused to hear a case regarding the issue. Mayerson charges the reason is because there are judges on both sides of the issue, and neither party believes they have the votes to render a decision that they agree with.
President Trump’s Ministry of Justice has weighed in on the hotly debated topic. In July 2017, the department of justice filed an amicus brief at the 2nd Circuit Court arguing Title VII does not apply to sexual orientation.
“The essential element of discrimination on grounds of sex under Title VII is that the employees of a particular gender should be treated worse than also situated employees of the other gender, and sexual orientation discrimination simply does not have that effect,” the brief argues.
This Department of Justice also stated that “All attempts to amend Title VII of the scope must be addressed to the Congress rather than the courts.”
What does the ambiguity of Title VII to mean?
Without a federal statute from the Supreme Court or a law passed by Congress, the states are left to their own devices.
Since the 7th and 2nd Circuit courts have determined that the provisions of Title VII extends to people within the LGBT community, the six images that are under their jurisdiction – Illinois, Indiana and Wisconsin; and Connecticut, New York and Vermont, respectively, a law to follow. Sixteen other states have taken legal measures to protect LGBT people from discrimination.
This means that the remaining 28 states are left to the mercy of the local, national, and local laws and small court judgments.