On October 8, the Supreme Court will hear arguments on whether it is legal to fire workers for being trans, and whether it is legal to fire workers for being LGBQ.
Aimee Stephens, a funeral director, lost her job when she told her boss she was a transgender woman. Don Zarda, a sky diving instructor, and Gerald Bostock, an advocate for abused and neglected children, were both fired for being gay men. It is these three cases the Court will hear.
When I tell people about these cases, they often react with surprise — they can’t imagine why there would be any question. Obviously it’s illegal to fire people for being trans or LGBQ.
That’s true. Title VII of the Civil Rights Act — the federal law prohibiting employment discrimination — says that employers cannot fire, refuse to hire or otherwise discriminate against any individual because of that individual’s sex. Firing someone because they identify with a sex different from their assigned sex at birth is obviously firing them because of their sex. And firing someone because they are attracted to people of the same sex is also obviously because of sex.
Take Stephens’s employer. When it explained why it fired Aimee, it said it did not want anyone working there who denied their sex or attempted to change their sex. It said that it fired Aimee because she was no longer going to represent herself as a man, and planned to dress as a woman. It is hard to see that decision as about anything other than sex.
The U.S. Equal Employment Opportunity Commission and many federal courts agree. After all, the Supreme Court ruled back in 1989 that sex stereotypes are not a valid basis for employment decisions. It is very much a sex stereotype that everyone assigned male at birth will identify as a man, look and act in ways considered typical for men, and feel attraction only to women. And in another context, the Supreme Court has acknowledged that “mutually reinforcing [sex] stereotypes create a self-fulfilling cycle of discrimination.”
However, the Supreme Court has not yet weighed in directly about whether employers can fire workers for being trans or LGBQ. Other Supreme Court cases related to trans and LGBQ rights have not focused on employment. The case recognizing marriage for same-sex couples was decided based on the constitutional right to marry. The only Supreme Court case about transgender rights before now was about the right of an incarcerated transgender woman not to be put in situation where she would be raped.
After October 8, the Supreme Court may — and should — make it clear that federal law prohibits employment discrimination against TLGBQ people everywhere in the U.S., giving victims of discrimination a powerful tool for holding employers accountable. But law, logic and morality are not always enough. It could instead strip TLGBQ employees of the protections they have had for years, leaving workers in most states with no clear recourse if they get fired for being who they are — something that happens far too often. And the outcome here will also almost certainly determine people’s rights under federal law in the context of housing, credit, health care and schools as well, because those laws use language similar to the language the Court will interpret.
What’s more, warping the law to exclude TLGBQ people harms anyone who relies on protections against discrimination, across the board. To try to justify firing TLGBQ people, the Trump administration and the employers make dreadful arguments, some of which I wrote about previously. But one of their main arguments is that if you discriminate against both men and women in parallel ways, then it doesn’t count as sex discrimination. So firing Aimee for being a transgender woman wasn’t sex discrimination, because her employer claimed it would also fire someone for being a transgender man. And firing Gerald for being gay wasn’t sex discrimination, because his employer might theoretically also have fired someone for being a lesbian.
This “logic” has dangerous, far-reaching implications. It could mean that an employer could get away with firing a woman for not being feminine enough, if it claimed it would also fire a man for being too feminine.
It could mean that an employer could get away with tolerating sexual harassment toward women, so long as it claimed it would also tolerate sexual harassment toward men.
It could mean that an employer could get away with only hiring men for certain types of positions, so long as it claimed it would also only hire women for certain other types of positions.
And there is no reason to believe that this endorsement of parallel discrimination would stop with sex discrimination. It might let an employer get away with firing someone for being in an interracial relationship, if the employer said it would fire anyone of any race who was in an interracial relationship. It might let an employer get away with firing someone for converting from Christianity to Islam, if it claimed it would fire anyone of any religion for converting to a different religion. It might let an employer get away with firing a Puerto Rican employee for correcting a supervisor who thought she was Mexican, if the employer said it would fire anyone of any national origin who corrected a supervisor about where she or her family was from.
The stakes are high. But the power isn’t only with the Court. There are many ways that people can act. Here are a few actions you can take:
First, make it clear that the country will not tolerate treating TLGBQ people as disposable. If you can, join the rally outside the Supreme Court in Washington, D.C., on October 8, or show support online. Send supportive messages to Aimee Stephens.
You can also support trans-led community groups. These groups are doing what it takes to create safety and self-determination for trans communities, whether it is freeing people from detention, making sure people have food and transportation, or supporting our spiritual health.
Additionally, it’s important to support the Equality Act. If the employees lose, the Equality Act will fix that for the future by making it absolutely clear that TLGBQ people are covered. Even if they win, the Equality Act will close other gaps in the law. For example, right now federal law says it is OK to discriminate on the basis of sex in public accommodations like restaurants, banks and stores. That needs to change.
Encourage your workplaces and unions — as well as businesses where you shop — to commit in employment contracts not to discriminate against TLGBQ employees.
Participate in mutual aid. If the employees lose, we can expect a lot more people to experience discrimination like Aimee Stephens, Don Zarda and Gerald Bostock did. Aimee Stephens and her wife Donna Stephens had to sell their possessions to stay afloat, and struggled with bills for Aimee’s kidney dialysis. Gerald Bostock lost his health insurance while recovering from prostate cancer. They will have no chance of getting compensation if the Court rejects their claims. A bad decision could embolden many employers to fire TLGBQ employees. Moreover, even if we win, we will only have won the right to sue when we face discrimination. Many TLGBQ people, especially disabled trans people and trans people of color, will continue to live in poverty. Win or lose, we depend on one another, and we need to support one another.
As always, we are all in this together.
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