The Basics
On October 8, 2019, the Supreme Court will hear oral arguments for three cases that will impact the lives of LGBT people across the United States. The cases will determine whether the Title VII of the Civil Rights Act of 1964, which bans employment discrimination on the basis of sex, also extends to sexual orientation and gender identity. Essentially, these cases will determine whether an employee can be fired on the basis of being LGBT.
Two of the three cases, Bostock v. Clayton County and Altitude Express v. Zarda, have been condensed, as they address the same question: Does Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of . . . sex,” protect against discrimination based on an individual’s sexual orientation?
Bostock v. Clayton County addresses the case of Gerald Bostock against Clayton County, Georgia. In 2003, Bostock, a gay man, began working for the county as a child welfare services coordinator. In 2013, shortly after being criticized for joining a recreational gay softball league, the county terminated Bostock for “conduct unbecoming of its employees.” In 2016, Bostock filed a lawsuit against the county for discrimination in violation of Title VII. The lawsuit was initially dismissed due to an earlier case, Evans v. Georgia Regional Hospital, in which the court decided that discrimination on the basis of sexual orientation is not prohibited by Title VII. Bostock appealed to the US Court of Appeals for the Eleventh Circuit, which affirmed the lower court’s ruling. In addition to procedural issues in Bostock’s appeal, the panel argued they cannot overrule a prior holding without intervention from either the Supreme Court or an Eleventh Circuit en banc decision (a case that is decided by the entire bench, not just a panel of judges). The Supreme Court first granted the petition for certiorari in January 2019, but the Justices chose not to take action until their review of the case in April.
Similarly, Altitude Express v. Zarda argues that an openly gay man was fired on the basis of his sexual orientation. Donald Zarda worked as a sky-diving instructor at Altitude Express. As his instruction involved being strapped together with clients, Zarda often informed female clients of his sexual orientation in an attempt to make them more comfortable being strapped to a man. After a jump, a female client claimed that Zarda had used his sexuality as an excuse to touch her inappropriately. He denied the accusation, however, and alleged that he had been fired solely on the basis of being gay. The United States Court of Appeals for the Second Circuit ruled in favor of Zarda, deciding that Title VII does extend to sexual orientation. Altitude Express appealed the decision, and the case is now headed for the Supreme Court
While the previous two cases focus on sexual orientation, the third case, Harris Funeral Homes v. EEOC seeks to answer the question: Does Title VII of the Civil Rights Act of 1964 prohibit discrimination against transgender employees based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins? The Price Waterhouse case, decided in 1989, determined that gender stereotyping is actionable as sex discrimination and that an employer cannot be held liable for employment discrimination if they can prove that they would have made the same decision in the absence of discriminatory aspects.
Aimee Stephens was fired from her job at R. G. & G. R. Harris Funeral Homes in 2013 after coming out as a transgender woman. Stephens filed a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC investigated the complaint, then sued on Stephens’ behalf on the basis of sex discrimination due to Stephens’ refusal to conform to her employer’s sex-based stereotypes. Thomas Rost, Stephens’ former employer at the funeral home, did not contest that he had fired Stephens for being transgender, but he and his legal team argue that firing Stephens for being transgender is perfectly legal, as long as they would fire a transgender man for the same reason. When the case was first brought to the United States District Court for the Eastern District of Michigan in 2016, the court ruled in favor of the employer. The EEOC appealed the case to the Sixth Circuit, which reversed the decision in March 2018. In response, Harris Funeral Homes filed a petition in the Supreme Court.
The Supreme Court granted certiorari for Harris, Bostock, and Zarda in April of 2019, and the cases are scheduled to be heard on the same day, with Bostock and Zarda consolidated. However, there are no deadlines to release court decisions until the last day of the Court’s term before the summer recess (in late June/early July), so it is possible that the opinions for these cases will not be released until several months after the oral arguments are heard.
The Arguments
The arguments in favor of the employees in all three cases are backed by years of precedent and common understanding that the phrase “on the basis of sex” applies to both gender identity and sexual orientation, because neither of those aspects can be addressed without taking sex into account. The employers’ arguments aim to reverse these precedents and make it legal for employers to fire any of their employees for not conforming to gender stereotypes in the workplace.
The ACLU, which is arguing on behalf of Zarda and Stephens, contends that sex-based employment discrimination laws extend to sexual orientation and gender identity on the basis of sex stereotyping. Under Title VII, a football league would be unable to have a rule against women holding decision-making positions within the league. The ACLU argues that discrimination on the basis of sexual orientation is subject to the same rules: if a man is fired because he is gay, then his employer is making that employment decision based on the fact that they believe men should be attracted to women.
The protections that LGBT people, and specifically trans people, have secured for themselves in the past have been mostly based on the precedent that firing someone for being attracted to the same sex or changing their sex is firing on the basis of sex—which is banned under Title VII. Reversing this proposition would undo years of work of activists and advocates, and set a dangerous precedent for the workplace rights of gay, bisexual, transgender, and gender non-conforming people.
The loss of protections wouldn’t just affect the LGBT community either; any regulation that directly affects gay and trans people will also affect straight and cisgender people. For example, if an employer can fire a transgender man for not conforming to sex stereotypes, what is to stop that employer from firing a straight, cisgender woman who decides to cut her hair short? Though these cases focus specifically on LGBT rights, they will have a broader impact on anyone who does not fit their employer’s idea of how men and women should behave or look.
Additionally, enforcement of these beliefs would require different rules for men and women: women cannot be attracted to women, and men cannot be attracted to men. If a woman in the company is allowed—or expected—to be attracted solely to men, then a man in the company should also be allowed to be attracted to men, and vice versa for attraction to women. The expectation of employees to be cisgender and heterosexual means that men and women are not subject to the same rules in the workplace, which is simply unconstitutional.
The arguments against extending sex discrimination protections to sexual orientation and gender identity are based on two premises: that trans people are not protected by these laws (or that trans people do not exist in the first place), and that sex stereotypes should be legal in the workplace.
The employer in the Harris case is promoting the idea that gender should not be a protected part of identity, because all people should be viewed as, referred to, and treated as their biological sex—dividing the world into two groups on the basis of what gender a doctor assigned them at birth. If gender identity is not a protected class, but biological sex is, then transgender people can be fired simply for being transgender because they do not align with social stereotypes and expectations about sex.
The Trump Administration, siding with the businesses in all three cases, has made the argument that making employment decisions based on sex stereotypes should be legal. This position is based in the idea that men and women are inherently different, and therefore, they should be treated differently; an argument that could easily allow for companies to revert to discriminatory practices.
Why Do These Cases Matter?
The decisions made by the Supreme Court in these three cases will impact the lives of LGBT people across the country.
Only twenty-one states, Washington, D.C., and two US territories have explicit non-discrimination protections in place for all LGBT employees. Three states, Michigan, Pennsylvania, and Wisconsin, have some protections in place based on existing interpretations of Title VII, and twenty-six states and three territories have no explicit protections for LGBT employees.
If the Supreme Court rules against protections for LGBT workers, employees will have only state and local protections to fall back on. If the Court rules that firing someone for being gay or transgender is legal, it would allow for businesses in states without protections to fire their employees on the basis of objections to their “lifestyle.”
After the first two months in office, the Trump Administration removed protections for transgender students, nominated two anti-LGBT justices (Neil Gorsuch and Brett Kavanaugh) to the Supreme Court, and removed questions about gender identity and sexual orientation from the 2020 census. Over the course of his first term, the President moved to reinstate a ban on transgender people serving in the military (which was blocked several times by US federal courts), joked that the Vice President, who has a long history of anti-LGBT legislation, wanted to “hang [gay people]”, and announced opposition to the Equality Act, a bipartisan bill that would provide protections to LGBT people in employment, housing, and several other areas—this list doesn’t even cover all of the harm that has been done to the LGBT community over the past two years.
The oppression of lesbian, gay, bisexual, and transgender individuals did not end with Obergefell v. Hodges, the Supreme Court case that made it illegal for states to deny marriage licenses to same-sex couples. This case was vitally important in extending a basic right to gay couples, but it did not solve the crises that LGBT Americans face every day.
In 2017 there was a five percent increase in hate crimes motivated by sexual orientation and a one percent increase in hate crimes against transgender people. So far in 2019, at least nineteen transgender people have been murdered, eighteen of them Black trans women. In 2017, the number of tragic deaths of transgender people—twenty-nine—was the highest ever. These numbers are likely undercounts, based on the fact that many transgender people are either not publicly out or do not have accepting families, which results in many news outlets reporting wrong names and misgendering them. It was just over three years ago that the deadliest attack against LGBT people and the second deadliest terrorist attack in the United States since 9/11 occurred, when a shooter opened fire at Pulse nightclub in Orlando, Florida, killing forty-nine people and leaving more than fifty wounded. In many places in this country, gay couples are afraid to do as little as hold hands in public for fear of being beaten or killed.
Only nineteen states (with the inclusion of North Carolina, which only has protections in place for minors) and D.C. currently ban conversion therapy, a violent and trauma-inducing practice that attempts to force LGBT people, including unconsenting minors, to return to “normal,” often using methods like electroshock therapy. While conversion therapy is one of the most extreme examples of violence, there are many other ways that society causes harm to LGBT people, such as parents kicking their children out of their house, allowing public figures to disavow their existence, or something as “trivial” as mocking trans people on TV. All of these things contribute to the epidemic of depression, suicide, and homelessness among LGBT folk. Employer and other discrimination remain an issue, which is indicative that we still have a long way to go before LGBT people have all of the rights they deserve.
Though these court cases cannot directly decrease every form of violence or prejudice LGBT people experience in this country, they are vitally important for the protection of civil rights for gay and transgender people. No person should have to worry about whether they are going to be fired simply for being in love with the wrong (in their employer’s eyes) gender. No person should have to worry about whether they are going to be fired simply because their gender identity does not align with the sex they were assigned at birth. Bostock, Zarda, and Harris are Supreme Court cases that will have massive implications for the civil protections of everyone, but especially the LGBT community. Next week’s ruling will, for better or worse, change lives. All that can be hoped is that our Justices acknowledge that LGBT people deserve the same rights and protections as everyone else.
