Tomorrow, the Supreme Court will hear oral argument on the question of whether Title VII’s prohibition on sex discrimination includes sexual orientation and gender identity discrimination. LPE Blog is hosting contributions from scholars that detail the history of sex discrimination protections and address how law should redress gender hierarchies and disparities in economic power. Find all the posts in the series here.
LGBTQ workers have never turned solely to the law to define or protect their rights. In years when many feminists and workers of color were narrowing their focus to pursuing individual advancement under antidiscrimination provisions like Title VII, LGBTQ workers articulated a new kind of right: to be fully oneself at work. They argued that sexuality and gender were irrelevant to job performance, as the older “homophile” gay rights movement had claimed. But they also denied that anyone could—or should—shed a piece of their identity at the office, factory, or schoolhouse door. Realizing this right, they argued, required altering the nature of work itself, This was a transformative vision that demanded change beyond the limited jurisdiction of the Supreme Court. However the Supreme Court rules on LGBTQ rights at work, today’s movements for workplace justice should not pin their hopes on the technical adjudication of the antidiscrimination principle. As activists demonstrated in the 1970s, sweeping reforms are possible — even in the absence of legal victories — with creative tactics that pressure employers directly.
The LGBTQ workplace rights movement entered a new phase in 1969, when accounting clerk Gale Whittington lost his job at a steamship company because an underground newspaper had published a photo of him hugging another man. A new group, the Committee on Homosexual Freedom (CHF), declared it was time to “remove our masks,” “engage in direct action,” and “fight in the streets.” About a hundred protesters began a daily noontime picket at the company’s San Francisco headquarters. They outlined gay workers’ distinct rights: to “fully and openly express our needs, without fear of intimidation or reprisal” and “to enter fully, without concealing our homosexuality, the political, social and economic fabric of America.”
The CHF also began a daily boycott of Tower Records in San Francisco when salesclerk Frank Denero was fired for winking at a customer. A manager, in letting him go, explained that they did not “tolerate that free spirit around here.” Activists responded that the store was run by “pigs with mustaches” who profited from the counterculture while undermining it with oppressive employment policies. Their protests turned away about thirty percent of the store’s business. After several weeks of pressure, store officials reinstated Denero with back pay and promised to end sexual orientation discrimination against workers and job applicants.
The movement did not merely react to individual workers’ mistreatment. Across town, several gay rights groups held a “work-in” in a federal building to publicize the fact that the federal government was a hostile employer. Twenty demonstrators wore badges that labeled them “homosexual[s] working for the government.” They entered the building and began operating the elevators and cleaning the hallways. Escorted out, they declared that they had been “fired” and set up a makeshift “unemployment office” on the steps outside.
Activists also saw that winning equality for LGBTQ workers required building new alliances that could shift power from employers to workers. “Being gay and working for a gay boss is obviously not enough” to secure fair treatment, said California AFL-CIO organizer Howard Wallace. Wages on Castro Street were as low, and labor conditions as poor, as in other parts of the city. Wallace organized a summit among two-dozen leaders of gay rights and labor groups. The LGBTQ activists pledged to oppose eight ballot initiatives the labor leaders were fighting, and the labor leaders promised to pursue non-discrimination clauses in future contracts. City Supervisor Harvey Milk and other LGBTQ community leaders also backed the Teamster’s boycott of Coors Beer in exchange for the union’s pledge to protect openly gay workers. “The gay bartenders marched out with the bottles of beer and dumped them in the sewers,” recalled union official and Pride at Work co-founder Nancy Wohlforth. “And to this day, you can’t find Coors in a gay bar in San Francisco.”
LGBTQ workers in the 1970s also sought basic legal protections. They won some local nondiscrimination ordinances, including in San Francisco. But they lost in state and federal courts in 1979, where they argued that sexual orientation discrimination was a kind of sexism that was already banned by existing laws including Title VII. The courts instead drew a bright new line between sex and sexuality. The California Supreme Court offered a concession by designating “coming out of the closet” as a protected action. But this opinion defined sex as immutable and sexuality as enacted. It dovetailed with conservative arguments that LGBTQ status was an expression that could be suppressed, not an essential identity that deserved the same protections granted to identities like sex and race.
This was a devastating loss, but antidiscrimination law, as it has been interpreted over the decades, would not have delivered the substantive rights these workers demanded. LGBTQ activists in the 1970s attacked the workplace structures that still penalize those who are not white, male, able-bodied or straight. The narrow definition of sex equality that Title VII has come to uphold has helped some previously excluded workers to advance while employers have lowered the floor for everyone else. This model of equality-as-interchangeability has made it harder for any workers to gain more substantive rights.
As LGBTQ workplace rights activists understood, everyone would benefit from more flexible work—for example, longer and less rigid medical leaves for transgender workers’ transition-related care and those recovering from childbirth. Caregivers should be able to demand a reasonable schedule and a living wage to help them balance those responsibilities. Workers should not have to fracture their identities or downplay the aspects of their lives that exist outside of work. The LGBTQ workplace rights movement of the 1970s knew this, arguing that more expansive schemes of social provision are integral to meaningful equality.
Just as LGBTQ activists looked beyond antidiscrimination law in the 1970s, modern movements should do the same. We should recover the range of activists’ earlier strategies and open a broader conversation about what all workers deserve, rather than waiting for the Supreme Court to tell us.