We will always find ourselves going back to the courts to fight for inclusion until we place the needs of the most vulnerable people first.
Those in the mainstream are less inclined to protect those who they view as furthest away from the mainstream. People who are working-class, poor, immigrant, transgender, ethnic/racial minority, or disabled are most often seen as those non-mainstream people. The fight for marriage equality ( i.e., the legal recognition of same-sex marriage by the federal government ) is an example of shortsighted legislation that only benefited the most socially acceptable among the vulnerable. These socially acceptable members are often white, cisgender, middle- and upper-class, and male. Marriage equality was praised as the signal of freedom for ( LGBTQ+ citizens.
However, this legislation bestowed ( mostly economic and property ) benefits only on those who chose to get married. It did not provide benefits to those who did not want to get married. It also provided little advantage to those who did not own substantial property and financial assets. It did nothing to address other forms of widespread legal discrimination. In fact, workplace, healthcare, and housing discrimination still drastically hinders the lives of LGBTQ+ citizens. Black transgender women are maybe the most vulnerable as they are also subjected to extremely high levels of violence.
We should learn from our past shortsightedness. We need policies that start with those who are most discriminated against. Policies that protect these groups will also protect groups who have more privilege.
The Supreme Court has the opportunity to move us toward a world that protects the most vulnerable members of our society. Three cases ( two focused on LGBQ+ and one focused on transgender rights ) will be heard by the Supreme Court on Oct. 8. These cases are: Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC.
The court will determine if current federal law, Title VII of the Civil Rights Act of 1964, protects LBGTQ+ citizens. Based on the way Title VII is currently written, it does not seem to cover sexual orientation. It mentions sex but not sexual orientation. Sex is written about in the law like how we think of gender ( i.e., male or female ) not how we think about romantic and sexual attraction to a person of a particular sex or gender ( i.e., sexual orientation ). Thus, people who are LGBQ+ may not be currently protected. However, with the law as written, it would seem that transgender people should be protected, given that the law does include sex ( again written about like how we understand gender ).
Regardless of the court's ruling, these cases highlight larger problems in the way we think about LGBTQ+ communities and their rights in the United States. First, we often only think of one LGBTQ+ community and not LGBTQ+ communities. We do not consider the ways in which legislation and protections may not be one size fits all. We often start with legislation that only considers the needs of the most socially acceptable members of the LGBTQ+ communities. We must begin to consider the differences between LGBTQ+ sub-communities. Distinct LGBTQ+ communities are often affected differently by legal protections or the lack thereof.
Second, most people do not have a good understanding of the differences between sex, gender, sexual orientation, and gender identity. Sex ( e.g., male, female ) is a label assigned at birthsometimes beforeusually by a doctor. This label is based on body parts ( e.g., whether one has a penis or vagina ). Gender is a label that dictates how a person should express themselves based on their sex. Sexual orientation is generally considered to be how people understand their romantic and sexual attractions to a person of a particular sex and gender. This is not the same as gender identity, which is how people mentally understand their own gender. These concepts are different things and have different implications for how people understand themselves and how we craft and interpret laws. More education is needed for our society. Otherwise, we may think we are being inclusive while we are ( perhaps ) unknowingly leaving out a lot of people.
Without focus on the most marginalized communities in society and a better understanding of LGBTQ+ concepts and definitions, we will not be able to effectively protect all LGBTQ+ citizens. The cases that will be heard by the Supreme Court show us how far we still have to go to ensure that all Americans are equally protected by the law. Only with equal protection can we all freely exercise our rights of life, liberty, and the pursuit of happiness.
Jonathan Mathias Lassiter, Ph.D., is a clinical psychologist, author and public speaker. Follow him on Twitter at @matjl.