ABOVE: Gerald Bostock speaks to reporters on the steps of the United States Supreme Court building on Oct. 8, 2019. Washington Blade photo by Michael Key.
After enduring anti-gay comments on the job, snide remarks about playing in a gay softball league and ultimately termination, Gerald Bostock finally had his day in court.
But not just any court—the U.S. Supreme Court.
The outcome of his case, which alleges anti-gay discrimination is a form of sex discrimination, and thus prohibited under Title VII of the Civil Rights Act of 1964, will have historic impact on LGBT rights throughout the United States.
In a sit-down interview at the Washington Blade office on Monday—the day before the Supreme Court heard oral arguments in his case—Bostock said being at the forefront of the gay rights movement is something he never envisioned.
“It’s exciting, of course, but at the same time…it’s very surreal,” Bostock said. “You know, I didn’t ask for any of this. But what I’ve learned through my journey, and through my experience with this is that it’s so much more than just me, this is such an issue of national importance. And it impacts so many people, millions and millions of people, and somebody needed to stand up and face this head on.”
Bostock, 55, began working in 2013 for Clayton County as the child welfare services coordinator for the Juvenile Court of Clayton County. Over this time, he was given primary responsibility for the Clayton County Court Appointed Special Advocates program, or CASA. The initiative oversees volunteers working to help at-risk children in the juvenile court system.
Under his leadership, Bostock was given favorable performance reviews. In 2007, Clayton County CASA received the Program of Excellence Award from Georgia CASA. In 2010, it was the first county in the Atlanta area to supply a volunteer to every neglected or abused child in the juvenile court system.
Things changed in recent years. Bostock, who’s gay, became involved in 2013 with the Hotlanta Softball League, a gay recreational sports affiliation. Subsequently, Bostock alleges, his participation in the league and his sexual orientation were openly criticized on the job.
In April 2013, Clayton County told Bostock it was conducting an internal audit on the CASA program funds. Bostock, who insists he never engaged in any misconduct with regard to the program funds, alleges Clayton County initiated the audit as a pretext to discriminate against him for being gay.
In May 2013, during a meeting of the Friends of Clayton County CASA Advisory Board where Bostock’s supervisor was present, at least one person disparaged Bostock’s sexual orientation and his participation in the Hotlanta Softball League.
One month later, Bostock was fired. The stated reason for his termination was “conduct unbecoming of a county employee.”
Bostock, who insists he did nothing wrong and was fired for being gay, said he has suffered significant hardship after losing his job despite excelling in his role.
“I had throughout my tenure with Clayton County, obviously, great performance reviews, again, the success that we were having, which impacted so many children that were innocent victims in this,” Bostock said. “So imagine having all that yanked away from you, and your reputation, you know, ruined within the community that you love, and where you live.”
A spokesperson for Clayton County declined to comment on Bostock’s allegations of anti-gay discrimination, citing a general practice of not commenting on pending litigation.
Bostock filed his first lawsuit alleging anti-gay discrimination in May 2016. But the Eleventh Circuit has precedent indicating anti-gay discrimination is not unlawful. Bostock was unsuccessful at the trial court level and before the U.S. Eleventh Circuit Court of Appeals.
In May 2018, Bostock filed a petition with the Supreme Court seeking redress and a finding that anti-gay discrimination in the workplace is a form of sex discrimination, therefore illegal under Title VII. In April, the court agreed to review the case along with two other cases alleging anti-LGBT discrimination.
“Being successful, that means I’m able to paint my own portrait, the way it should be painted and not by somebody else, especially in such a negative light,” Bostock said. “It also means that I get to come back to the 11th Circuit in Georgia and have my day in court to not only clear my name, but to restore my reputation. But beyond that, it means that, again, nobody will have to go through this experience.”
For those who say the fight for gay rights is over, Bostock’s case is a stark reminder of the work that remains unfinished. In 30 states, no law protects LGBT people from discrimination, and the federal civil rights law contains no explicit protections for them.
“I say that Atlanta is a great community to live in, and I shouldn’t have to move from what I call home, which is Atlanta,” Bostock said. “It shouldn’t be based on the geographical luck of the draw.”
The evidence of ongoing struggles for LGBT people, Bostock said, is not just his own termination, but the harm it has caused for at-risk LGBT youth under his watch.
“What about the children in Clayton County in foster care that identify as LGBTQ?” Bostock said. “They’re probably in state care and custody, because when a parent or parents found out that they are gay, they were kicked out of their home, and were roaming the streets until they were picked up and placed into care. What kind of message does that send to those children? To me, it sends a very clear, homophobic message that you’ve lost a positive role model in your life when they fired Gerald Bostock.”
Brian Sutherland, an attorney with the Atlanta-based law firm Buckley Beal LLP who’s representing Bostock, echoed the sense “the fight for gay rights is absolutely not over,” citing states with no laws against anti-LGBT workplace discrimination.
“And I think also, you know, something I’ve been thinking about because of what’s bit sadly been in the news lately is incidents of bullying and violence, and situations where young gay people are hurting themselves sometimes because of this,” Sutherland said.
Bostock’s case is unique among the three before the Supreme Court because a private law firm, not the American Civil Liberties Union, is taking the lead on it. Further, the case reached the court as the result of a petition from an LGBT worker, not a company accused of anti-LGBT discrimination.
Although the petition to court was submitted in May 2018 just before U.S. Associate Justice Anthony Kennedy — who gained a reputation as an LGBT ally — announced he’d step down from the court, it was a risky move.
After all, the resulting decision on the increasingly conservative court could either lead to an affirmation LGBT people are protected under federal civil rights law, or a decision saying no such protections exist whatsoever.
Sutherland, however, said other LGBT legal groups have been “absolutely helpful” in the efforts with Bostock’s litigation.
“We stand united with all the folks that are fighting for gay rights,” Sutherland said. “I, myself, well used to be an attorney for the ACLU. So I was very happy that the ACLU is part of the representation for the case that’s been consolidated with ours.”
In the other two cases where the ACLU is the lead, the plaintiffs are Donald Zarda, a now deceased skydiver who alleged he was fired from his job for being gay, and Aimee Stephens, a transgender woman who was terminated from her job at Harris Funeral Homes when she announced she’d transition.
“I think that, you know, thankfully, there are a lot of organizations that are focused on the issues affecting the LGBT community,” Sutherland said. “And we’re just very proud to represent Gerald and also to play a part in the struggle.”
Now that the case has been argued before the Supreme Court, it’s time to wait until the decision comes down. It’s expected well before the court’s term ends in June 2020.
Regardless of the outcome, Bostock said he’s proud of his work at Clayton County and his pursuit of justice.
“I’m very proud of who I am, and I’m proud of the man I’ve become,” he said. “And I’m very proud of the hard work and successes that we were able to have under my leadership in Clayton County, especially because it impacted so many innocent lives. And you know, nobody’s going to take that away from me. Nobody, especially not Clayton County.”