In August, Gillian Branstetter, the media relations manager for the National Center for Transgender Equality, asked an audience a simple question. The response she received was "discouraging" at best. One of Branstetter's fellow panelists at a National Lesbian & Gay Journalists Association conference had mentioned Aimee Stephens, one plaintiff in a slate of cases regarding employment discrimination against LGBTQ people that the Supreme Court will hear Tuesday. Branstetter then asked people in the room to raise their hands if they knew who Stephens was. She estimates only four people in a room of about 40 journalists, many of them LGBTQ, raised their hands.
This week, the court will hear three cases, including Stephens', that won't only affect whether someone can be fired for being LGBTQ, but will also have far-reaching impacts on whether LGBTQ people are protected against discrimination in health care, housing, and education. The problem, Branstetter says, is that the issue isn't receiving as much attention as it should be.
"It's scary to have our rights and our humanity up for judgment, particularly when the court has two Trump appointees," Branstetter tells Bustle. "However, this is also an enormous opportunity."
In the three cases, President Donald Trump's Justice Department is asking the justices to set a legal precedent that would allow LGBTQ people to be fired for their gender identity or sexual orientation. Trump's DOJ argues these aren’t protected classes under current federal law, but legal experts tell Bustle that request goes against decades of precedent that protect LGBTQ employees. And while many advocates are worried about what will happen when the Trump administration’s hostility toward LGBTQ people meets the court’s current conservative majority, the experts Bustle spoke with laid out a few reasons for them to be hopeful.
The Facts Of The Cases
The three cases going before SCOTUS were filed by Stephens, a funeral director in Michigan who was fired after telling her employer she was transgender; Donald Zarda, a skydiving instructor in New York who was fired after his employer found out he was gay; and Gerald Bostock, a child welfare services coordinator in Georgia, who also claims he was fired for being gay, according to the American Civil Liberties Union. The ACLU is representing both Stephens and Zarda's family, who is pursuing the case on his behalf after he died in 2014.
Stephens was fired after drafting a letter to her employer, R.G. & G.R. Harris Funeral Homes Inc., that stated she is transgender and would be dressing in accordance with the funeral home's female dress code. The funeral home fired her for refusing to comply with the home's dress code for men. In a statement sent to Bustle, Senior Counsel John Bursch of the Alliance Defending Freedom, which is representing the funeral home, said, "Title VII and other civil rights laws, like Title IX, are in place to protect equal opportunities for women; changing ‘sex’ to mean ‘gender identity’ undermines that."
"Every trans person sees themselves in the everyday strength that she had to show just to be herself."
In the two other cases, Zarda and Bostock lost their jobs after their employers found out about their sexual orientation. Zarda was a skydiving instructor who worked for Altitude Express, based in Long Island. Zarda told a female customer that he was gay because the two of them were strapped together before a jump, and he wanted to make her more comfortable, according to the Daily Beast. The customer reported Zarda to his employers, who fired him for allegedly touching the customer "inappropriately," which his family and lawyers deny. Altitude Express has denied the discrimination claims.
Bostock, who was a a child welfare services coordinator in Clayton County, Georgia, says he was fired after he joined an LGBTQ-inclusive softball league, according to NBC News. Bostock told NBC that after he joined the Hotlanta Softball League, he heard at least one senior staff member in his office say something negative about his sexual orientation.
Three months later, the county audited Bostock's program and then fired him for "non-discriminatory reasons," the county told NBC News. But according to SCOTUSblog, Bostock and his lawyer, Brian J. Sutherland, say the county falsely accused him of mismanaging public funds so that it could fire him for being gay.
Bustle has reached out to Altitude Express and Clayton County for comment.
Although the cases will have serious consequences, Branstetter says Stephens' case, in particular, really captures the strength and resilience of the trans community.
"When you read the letter that [Aimee] sent to her employer, I think every trans person sees themselves in the everyday strength that she had to show just to be herself, and her refusal to sit back and accept a second tier life," she says. "I think she has put forward an enormous amount of strength, and I think that's something commonly shared among a lot of trans people. We understand that anytime a door is shut in our face, sometimes the best thing to do is kick it back in. And this case is an opportunity to show that."
Anti-Discrimination Law And LGBTQ Workers
The statute at issue in each of the cases is Title VII, which is part of the Civil Rights Act of 1964. Title VII protects people from discrimination based on sex, race, color, religion, or national origin, according to the EEOC.
In a brief filed Aug. 16, the DOJ asked the court to rule that "sex" under Title VII means "biological sex," or sex assigned at birth, arguing that was its accepted meaning when the founders wrote the Constitution. But a number of federal appellate courts have protected transgender people under Title VII, and decades of case law have found that sexual orientation discrimination is covered under sex discrimination.
ACLU attorneys Ria Tabacco Mar and Gabriel Arkles argue that discrimination against LGBTQ people is fundamentally based on their sex. "Firing someone for being a man who dates other men, or for being a woman who was assigned the sex male at birth, is literally discrimination 'because of sex,'" they wrote in a blog post, because an employer is using a person's assigned sex to make judgments about who they should date or how they should dress.
The DOJ is arguing that Title VII doesn't state "sexual orientation" explicitly as a protected class. It also argues that Title VII should be interpreted in the way it would've been interpreted back in 1964, when the Civil Rights Act was passed, and when LGBTQ people weren't accepted.
Tabacco Mar, who is one of the ACLU attorneys representing Stephens, says the Supreme Court hasn't directed people to read Title VII as incredibly limited, based on what people would think of as discrimination in the '60s. She gave the example of sexual harassment cases, which judges once dismissed as an interpersonal matter between employees. Then, in Meritor Savings Bank, FSB v. Vinson (1986), the Supreme Court declared sexual harassment to be a form of sex discrimination under Title VII.
"It does not matter that no one in 1964 was thinking about it or, in fact, that the phrase 'sexual harassment' really didn't exist in 1964," Tabacco Mar says. The Supreme Court has previously ruled that bans on sex discrimination like Title VII can't be limited by "our imagining what Congress thought it was doing" at the time, meaning it also can't be interpreted to exclude LGBTQ people even though they weren't accepted in the '60s, she says.
"In many ways these cases are even more fundamental than the right to marry."
The DOJ also argues that the discrimination protections Title VII offers is very narrow, and is only applicable when women face differential treatment relative to men. But Sarah Warbelow, legal director at Human Rights Campaign, tells Bustle that the Supreme Court, including the late conservative Justice Antonin Scalia, has made clear that federal non-discrimination laws should be interpreted broadly to alleviate as much discrimination as possible.
What's Really At Stake
If the Supreme Court decides that Title VII does not protect LGBTQ people, Warbelow says, it brings us back to a "patchwork" of laws across the country, where some states have nondiscrimination protections, and others don't.
But if the court sides with the plaintiffs and recognizes that Title VII does cover LGBTQ people, it will mean that people will be able to seek legal recourse if they experience discrimination no matter where they live.
"Employers will be put on notice that they will be held liable if they engage in discrimination against a person based on their sexual orientation or gender identity," Warbelow says. "I think we would see a really significant decrease in the incidents of discrimination that LGBTQ people face in the workplace."
Regardless of which way the court rules, both Warbelow and Tabacco Mar point out that LGBTQ people who think they have experienced workplace discrimination can still file a charge with the EEOC. That process is free and doesn't require a lawyer. And, they say, the EEOC has supported LGBTQ people with discrimination claims (it is co-representing Stephens in her case against the DOJ).
Corollary laws, such as nondiscrimination protections in health care, housing, in prisons, and more, would also be affected by the court's decision. If the Supreme Court decides that a nondiscrimination law should include LGBTQ people, that would set a legal precedent that changes the interpretation of all other nondiscrimination protections. Lower courts would defer to the Supreme Court's decision when interpreting bans on discrimination in other areas. Warbelow says the decision would allow LGBTQ people to be protected from discrimination under Title IX of the Education Amendments of 1972, for example, which prohibits discrimination in education on the basis of sex.
Jennifer Levi, director of the Transgender Rights Project at GLBTQ Legal Advocates and Defenders (GLAD), tells Bustle that the Affordable Care Act also has a nondiscrimination provision that has been interpreted to prohibit discrimination in access to health care on the basis of sexual orientation and gender identity.
"Even though [the Trump] administration is trying to dismantle that, the law remains," Levi says. "An outcome in this case would have serious impacts for the scope of that federal nondiscrimination law in the context of health care access," while a decision in favor of the employers would "undoubtedly be the basis for the erosion of those protections and maybe even their reversal."
Despite the potentially sweeping effects of these cases, Tabacco Mar says they haven't been getting much attention compared to Obergefell v. Hodges, the case that established same-sex couples' right to marriage in 2015.
"In those weeks and months leading up to the Supreme Court argument in the marriage equality cases, everyone in our community was talking about it," she says. "I have not heard the same level of alarm when it comes to these cases, or the same recognition that our rights are at stake. In many ways these cases are even more fundamental than the right to marry, because this affects our ability to earn a living, to keep a roof over our head, to provide for our families, and our very ability to exist in society at all."
This post has been updated to include comment from the Alliance Defending Freedom and clarify information about the National Lesbian & Gay Journalists Association conference.