While most Americans have heard of the Red Scare, the McCarthyist campaign during the early years of the Cold War to vilify alleged Communists, far fewer learn about the concurrent Lavender Scare, a much larger wave of repression that gained force in 1953 when President Dwight Eisenhower signed an executive order banning gay men and lesbians from all jobs in government. All told, between 5,000 and tens of thousands of gay workers are estimated to have lost their jobs.
That was the 1950s, but Dr. Chauncey stressed that the risk of losing one’s livelihood and aspirations remains a powerful constraint on L.G.B.T.Q. people around the country, as the experiences of the plaintiffs in this case make clear. “The stakes in this case were very high,” he said, “and the court’s decision should be regarded one of the most important legal victories of the L.G.B.T.Q. movement.”
Chase Strangio, a lawyer who worked on the case, said on “PBS News Hour”: “This was an incredible day, coming on the heels of so many incredible and heartbreaking days of organizing and resistance. And the work has been fought for decades for what is an incredibly basic proposition, that you shouldn’t be fired from work just because of who you are.”
Inside the case
Unlike Obergefell v. Hodges, the case that legalized same-sex marriage nationwide in 2015, Monday’s Supreme Court ruling concerned not the Constitution but a statute: the Civil Rights Act of 1964. At issue was whether Title VII of the act, which prohibits employment discrimination “because of such individual’s … sex,” also prohibits discrimination on the basis of sexual orientation or gender identity.
Those who answer in the negative argue that if the authors of the Civil Rights Act had intended it to prohibit discrimination based on sexual orientation or gender identity, they would have said so in explicit terms. “Discrimination ‘because of sex’ was not understood as having anything to do with discrimination because of sexual orientation or transgender status,” wrote Justice Samuel Alito in his dissent. “Any such notion would have clashed in spectacular fashion with the societal norms of the day.”
But Dr. Chauncey pointed out that less than a decade after the Civil Rights Act was passed, conservatives themselves warned that the proposed Equal Rights Amendment’s ban on sex discrimination would require states to legalize same-sex marriages. And while some have argued that “transgenderism” wasn’t even “a thing” in 1964, it manifestly was, and had by that point been a subject of front-page news for more than a decade.
In any case, for Justice Neil Gorsuch, who wrote the court’s opinion, whether legislators in 1964 could have anticipated every eventual consequence of the language they used was beside the point. As a matter of logic, he wrote, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”