OPINION: From Bostock to Our Lady of Guadalupe, the fight against discrimination continues

image: washingtonpost.com

By Kevin Jennings, CEO of Lambda Legal

I began my career teaching high school history in 1985 at a religiously affiliated school in Providence, Rhode Island. It was a very different time for LGBT+ people in the United States.

Only one state (Wisconsin) prohibited discrimination in employment based on sexual orientation, the AIDS epidemic was cutting a swathe through the gay male population, and ‘out’ prominent public figures were as common as unicorns.

Knowing I had no legal protections, I didn’t see coming out as an option, and the daily stress brought on by the fear of being ‘found out’ and subsequently fired, haunted me every day. I loved teaching and working with young people but, over time, I came to hate my job, as I was living in fear every day.

I couldn’t help but think back to those teaching days when the Supreme Court handed down two recent decisions.

First, on June 15, ‘Bostock v. Clayton County’, which held that Title VII of the Civil Rights Act of 1964 protects people from being fired from their jobs, based on their sexual orientation or their gender identity. This raised the hopes of teachers, like I once was, that they would be protected from being summarily fired because of being LGBT+.

Those hopes were dashed on July 8, when, in ‘Our Lady of Guadalupe School v. Morrissey-Berry’, the Court ruled that teachers at religious schools – even those who engage in a negligible amount of religious instruction or activity – are covered by a “ministerial exemption” to nondiscrimination laws.

While 35 years have passed since I began teaching, LGBT+ teachers in religious schools are little safer today than they were back then, thanks to this ruling.

Let’s be clear on what the Court ruled in ‘Guadalupe’.

The Court held that teachers in religious schools can be deemed “ministers” if there is just a pinch of religious content in their lesson plans.

This, on its face, is absurd. As the son of a minister myself, I am very clear what a minister does and, despite my past employer’s religious affiliation, it sure as hell isn’t what I was doing as a US history teacher.

So, what did the Court really rule in ‘Guadalupe’?

Basically, they have given religiously affiliated schools a free pass to ignore civil rights laws that provide basic fairness to most of their workers. This is not just restricted to anti-LGBT+ discrimination – one of the teachers in the case alleged she was fired due to needing leave for cancer treatment, and the other claimed age discrimination.

Federal law is supposed to protect workers from arbitrary discrimination, based on disability or age, race or sex, or other personal traits that should be irrelevant on the job. But, thanks to the Supreme Court, religious schools can now dismiss individuals for reasons having nothing to do with job performance or religion, setting such schools largely outside and above the law.

This could not come at a worse time for American education.

American schools, once the envy of the world, are now far from the top of the heap. According to the most recent PISA (Programme for International Student Assessment) test results, the US came in 8th in reading, out of 64 countries, 11th in science, and 30th in math.

And finding teachers to go into classrooms to help improve our outcomes is becoming increasingly hard.  In the words of a recent study by the Economic Policy Institute, “the teacher shortage is real, large and growing, and worse than we thought,” as young people are both avoiding and fleeing the profession, due to low pay and poor working conditions.

At a time when our youth are struggling and need the very best teachers they can find, those dedicated to helping them should not be stripped of basic protections. The Supreme Court was wrong to empower their bosses to use religion as an excuse to ignore federal civil rights laws.


All opinions are the author’s own.

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