Tom Capon

Donald Zarda is one of three LGBTI people whose employment discrimination case will be heard by the Supreme Court of the United States (SCOTUS) this year.

The Supreme Court will decide whether LGBTI people are granted civil protections under Title VII of the Civil Rights Act. Zarda’s team are arguing the provision protecting people from sex-based discrimination must also apply to sexual orientation, as the two are inextricably linked.

If the Supreme Court rules in favor, this could mean LGBTI people cannot be fired from a job based on their sexuality under federal law. If ruled against, LGBTI people would have to rely on state and city statutes for protection, leaving many without.

Before the oral arguments are heard this fall, Gay Star News is posting guides for all three cases. The first is for  R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission & Aimee Stephens. The second is Bostock v. Clayton County.

The third one is Altitude Express, Inc, v Melissa Zarda. (Donald Zarda unfortunately passed away in a skydiving accident. His sister, Melissa, and partner, Bill, are now the petitioners)

What this Supreme Court case is about

Donald Zarda was an employee at Altitude Express, Inc, formerly doing business as Skydive Long Island, under New York laws.

During the summer of 2010, Rosanna Orellana and her boyfriend, David Kengle, went skydiving with Altitude Express. They both purchased tandem skydives. This means the instructor is strapped hip-to-hip and shoulder-to-shoulder with the client, allowing the instructor to deploy the parachute.

Zarda was Orellana’s instructor.

At some point during the experience, Zarda told Orellana that he was gay and ‘had an ex-husband’. Zarda said he tells female clients of his sexual orientation in order to avoid any awkwardness at being strapped so close together.

Afterwards, Orellana told her boyfriend Zarda touched her inappropriately during the dive. She claims he used his sexual orientation to excuse his ‘inappropriate behavior’.

Kenge complained to Altitude Express’ owner, Ray Maynard. He then fired Zarda, claiming he had a history of similar complaints of inappropriate behavior. However, when Zarda sought unemployment welfare, Altitude Express told the New York Department for Labor that Zarda was fired ‘for shar[ing] inappropriate information with [customers] regarding his personal life’.

A month after being fired, Zarda filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC).

In it, he claims ‘[a]ll of the men at [his workplace] made light of the intimate nature of being strapped to a member of the opposite sex’. However, he says he was fired because he ‘honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.’

How the case progressed 

The District Court (and later affirmed by the Second Circuit court) dismissed Zarda’s original claims of discrimination on sex-based stereotypes.

Instead, in an appeal, Zarda asked the Second Circuit to reconsider its interpretation of Title VII to include sexual orientation with sex discrimination.

The Second Circuit court ruled in favor of Zarda, stating it’s impossible to discuss sexual orientation without referencing someone’s sex. Chief Judge Katzman of the Second Circuit explained that to ‘identify the sexual orientation of a particular person, we need to know the sex of the person and that of the people to who he or she is attracted.’

So, in this case, an employer who says a man attracted to other men cannot work at the business, but takes no action against a woman attracted to men, is discriminating based on the person’s sex.

Support and contest

Over 2,000 signatories submitted nearly 50 friend-of-the-court briefs in support of the three LGBTI cases. Friend-of-the-court briefs are documents offering expertise or insight to the court submitted by someone who is not part of the hearing, nor have they been solicited by a party involved.

Businesses – including heavyweights like Apple and the Bank of America – argue affirming protections for LGBTI workers would be beneficial. The companies argue this will allow them to recruit and retain top talent, as well as generate ideas from a diverse background. They can only do this if the employee doesn’t fear unemployment if they disclose their gender identity or sexuality.

Thirty-five high-ranking Republicans are in favor of the decision, arguing for civil rights protections from a conservative point-of-view.

Chairperson for the Republican National Committee (2005 – 2007), Kenneth Mehlman, wrote in an op-ed for the New York Times: ‘Our party should support people’s ability to reap the rewards of their labor – to earn a fair and honest living and to work where they want to work.

‘We are the party of economic freedom, personal liberty and limited governmental interference.’

Religious groups, such as the Synod of the United Church of Christ, the Central Conference of American Rabbis, and Muslims for Progressive Values filed a brief supporting the dignity and worth of all people, including LGBTI people.

However, not everyone is in support of affirming these rights. President Donald Trump’s Justice Department has argued against it.

In their brief, the Justice Department says: ‘The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination.

‘It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.’

What happens now? 

The Supreme Court will hear oral arguments for the case on 8 October. A decision is likely to be handed down in spring 2020, during the presidential race.

The Supreme Court currently has a conservative majority. Trump has nominated two conservative justices, Neil Gorsuch and Brett Kavanaugh.

See also

Using data from the 2015–2017 Center for Disease Control and Prevention’s Youth Risk Behavior Survey, the Trevor Project released a new report about the health of bisexual youth in the United States.

On the whole, they found bisexual youth reported higher rates of suicide ideation, bullying, and other negative experiences.

In the CDC’s data, as re-stated in the report, 7% of youth identified as bisexual, compared to 2% as gay or lesbian and 4% as not sure.

Between their fellow peers in the LGBTI community, and heterosexual peers, there exists a disparity. Researchers found this both in mental health and victimization.

What they experience

Overall, bisexual youth reported higher rates of various mental health struggles than all their peers.

When asked if they felt sad or hopeless, ever seriously considered suicide, or attempted suicide, bisexual youth had the highest affirmative responses.

A majority of bisexual youth (66%) reported feeling hopeless or sad. In comparison, 27% of straight youth reported this, as well as 49% of gay/lesbian youth.

When it comes to suicide ideation, 48% of bisexual youth have ‘seriously considered it’. 27% have actually attempted suicide.

Among gay and lesbian youth, these numbers are 37% and 19%.

Further, bisexual youth also have the highest rates of reporting bullying (on school and online). They also report the highest rates of experiencing ‘forced’ sexual intercourse.

21% say they’ve been forced into sexual intercourse, and another 36% and 30% say they’ve been bullied at school and online, respectively.

Stigma around bisexuality

As Amy Green, Director of Research for The Trevor Project, noted, bisexual youth are ‘more likely to experience victimization, depressed mood, and suicide attempts than their straight, lesbian, and gay peers’.

‘These disparities are likely related to increased minority stress faced by bisexual youth who may be stigmatized by both straight and gay/lesbian communities,’ she continued.

There is stigma surrounding the bisexual community based on negative stereotypes and myths. Some of these myths include bisexual people not being able to make up their mind or being promiscuous.

Green said: ‘Enhancing youth coping skills and social support can mitigate the link between stigmatization and negative outcomes, which is why The Trevor Project’s crisis services operates 24/7 to provide that support to bisexual youth as well as all LGBTQ youth in crisis.’

If you or someone you know is feeling hopeless or suicidal, contact The Trevor Project’s TrevorLifeline 24/7/365 at 1-866-488-7386. Counseling is also available via chat every day atTheTrevorProject.org/Help, or by texting 678-678.

A school suspended two teachers after they mocked a 14-year-old boy by implying he is gay.

The child’s mother, Jean Mott, claims the teachers, from Shiloh Middle School in Snellville, Georgia, made inappropriate comments about the student’s sexuality in front of his entire class.

Speaking to WSB-TV, Mott says her son came home in tears in December 2018 because his teachers made comments that made him appear to be gay. His classmates have teased him ever since.

One teacher implied another child was the boy’s ‘boyfriend’ and made fun of him after he was absent from school for a few days.

Homophobic bullying from the teachers

Mott told the news channel: ‘The teacher said to my son, “Your boyfriend was cheating on you while you were away. Oh, you two make a really good couple”‘.

She also says one of the teachers accused her son of chasing boys around the school. This was after another classmate pushed him.

Mott continued: ‘Help me understand why, as an adult, you would do this to a child? Why would you bully my child, or any child?

‘I cannot allow these teachers to go out and do this to anybody else’s child. They initiated the bullying. As a result, my son has been bullied by his peers and it’s something he’ll never live down.’

The teachers apologized to the mother in a meeting. The school suspended them for two days.

School officials released a statement: ‘Both investigations found that the teachers comments were inappropriate. As a result, disciplinary action was taken against both teachers.’

The Georgia Professional Standards Commission are investigating. They will decide whether the teacher’s keep their education certificates.

LGBTI and straight students feel safer when a school has a gay-straight alliance club, according to research.

Conducted by the University of British Columbia (UBC), Canada, the research found that with every additional year the school operated the gay-straight alliance, the teenagers felt safer.

Elizabeth Saewyc, professor of nursing at UBC and senior author of the study, told Phys.Org: ‘We found that students’ feelings of safety at school kept increasing over at least 14 years, the longest time a GSA has been in a B.C. school so far.

‘Schools that never had a GSA did not show the same patterns of improving school safety.’

Gay-straight alliances are student-led, community-based organizations that provide a safe space for LGBTI kids. They can also be run as gender and sexuality alliances, to provide additional support to trans and gender non-conforming adolescents.

Helping all school students 

The researchers note that previous research shows when a gay-straight alliance has existed in a school for three years or more, there’s a lower rate of suicidal thoughts in both LGBTI and straight kids.

Published in Social Science & Medicine – Population Health, the study uses data from 135 schools who participated in province-wide B.C. Adolescent Health Surveys. They date date back to 2003.

1625 of the participants identified as gay, lesbian or bisexual, while 37,597 identified as straight. They reported if they felt safe in classrooms, toilets, hallways, the cafeteria, library, and outside the school property during school hours.

The studies were conducted every five years, surveying the adolescents in grades seven through 12.

Critics of gay-straight alliances have claimed their existence may cause confusion or harm.

In December 2018, teens running an alliance in a Newfoundland school claimed they were receiving death threats by other students.

The posters advertising the club were defaced with ‘straight pride’ flags. The club started at the beginning of the school year.

An 11-year-old student needs to be escorted to her classes after a violent attack and a series of threats.

Savannah Tirre, a sixth-grader at Zia Middle School in Las Cruces, New Mexico, has been threatened on social media by her peers. She has now returned to school. The tween is being escorted to lessons by a Mesilla town marshal, according to Las Cruces Sun News.

Her mother told the news site she has been the target of bullying since October after Tirre came out as gay. The bullying began at her former school Picacho Middle School, forcing her to transfer to Zia.

She came out in the summer after fifth grade

The bullying only continued in her new school.

On Friday (8 February), students published a video on Facebook showing Tirre being punched six times by a student. The bully is not identified.

While the video doesn’t explicitly mention her sexuality, comments on social media threaten more violence and called her gay. One comment seen by the Sun News shows one person calling her ‘a little lesbian’ while saying she is ‘about to get jumped Monday again so get your phones out’.

Her mother has now filed a police report.

Savannah Tirre came out to her mother after graduating from fifth grade at Mesilla Elementary School.

Her family have always accepted her, but the students have not been so kind. According to her mother, the bullying was so intense that she started experiencing seizures that required medical attention by a pediatric intensive care unit.

The school have launched action plans to monitor the physical and emotional health of Tirre. Disciplinary action against the bullies have not yet decided, but the school said Savannah will not face suspension for fighting back.