The U.S. Supreme Court heard three cases yesterday to determine if the sex discrimination ban in Title VII of the 1964 Civil Rights Act includes discrimination based on gender identity and sexual orientation. It is the most important case explicitly dealing with LGBTQ people ever to reach the U.S. Supreme Court, and it is the first time in U.S. history that a trans civil rights case was argued in front of the Supreme Court. While transgender attorneys and activists gathered inside the courtroom to defend their right to exist, hundreds of LGBTQ individuals and allies rallied outside of the courthouse to stand up for the rights of LGBTQ people everywhere.
The court heard the oral arguments for and against Donald Zarda, Gerald Bostock, and Aimee Stephens. Zarda was a skydiving instructor at Altitude Express in Long Island, New York, who was fired after telling a customer he was gay. Bostock claims he was fired after 10 years of working as a child welfare services coordinator in Georgia because he joined a gay softball league. Zarda and Bostock’s cases were consolidated to address the question of whether sex discrimination includes discrimination based on sexual orientation.
The last case was that of Aimee Stephens, a trans woman who worked as a funeral director for six years until she was fired in 2013. Stephens had written a letter to her employer explaining that she was transitioning, and the conservative Christian employer fired her, admitting multiple times that it was because Aimee is transgender and would not dress like a man.
The lawyers representing all three plaintiffs argued that discrimination against gay or trans employees violates the 1989 Title VII ruling in Price Waterhouse v. Hopkins that protects individuals who do not conform to gender stereotypes, such as women considered too masculine and men considered too feminine. Because trans people do not conform to societal standards on sex or gender, they should implicitly be included in Title VII protection.
The outcome of the court’s decisions in the cases of Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission could potentially rewrite Title VII and become the first federal law explicitly protecting LGBTQ individuals. Currently, only 21 states and Washington, D.C., Puerto Rico, and Guam prohibit workplace discrimination against LGBTQ people. This means that in more 50 percent of states, an individual can be fired or not hired because of their sexual orientation or gender identity. The unemployment rate for trans people is three times the national average, and 30 percent of trans people have been fired, denied a promotion, or experienced harassment at their jobs due to their trans identity. Unemployment can lead to homelessness, which can force individuals into risky industries and situations where they are even more susceptible to violence, abuse, and death. This year, 19 transgender people have been murdered in the U.S., and 18 were people of color.
Romario Shiwmangal from the Caribbean Equality Project spent 10 days in the hospital last month after being beaten for being transgender.
“I didn’t think I would make it, but I am out here fighting for my right to live,” Shiwmangal said. “I’m representing my trans community and my country.”
Activist and journalist Ashlee Marie Preston spoke to the crowd about her story as a black trans woman. She transitioned during a job she had in 2004, which lead to her being harassed until she was eventually fired. She became homeless and was unable to get into a women’s shelter or a men’s shelter because she was trans. This led to a painful and dangerous life of drug addiction and sex work.
“We cannot continue pretending that whenever our human rights are rolled back, black trans women are not the first ones to be impacted by these decisions,” Preston said.
The Supreme Court’s ruling, which is expected to be released in 2020, will not only affect LGBTQ people, but it could roll back protections for any worker subject to sex stereotyping. That means the cisgender straight woman who does not shave her legs or wear makeup could be fired too.
The Trump Administration and the attorneys representing the employers argued that the Court must uphold the sanctity of the term “woman” as well as the sanctity of the bathroom, and that protection based on sex was never intended to include sexual orientation or gender identity. As has been proven time and time again, these laws are fluid and are not meant to be interpreted strictly, but the 5-4 conservative majority court now has the opportunity to explicitly carve out protections for trans, nonbinary, lesbian, gay, bisexual, asexual, and queer people in the workplace.
Stacy Marie Lentz, co-owner of the Stonewall Inn and co-founder of the Stonewall Inn Gives Back initiative, spoke to the crowd of restless LGBTQ individuals and allies in front of the Supreme Court. “Fifty years after the struggle that broke out on Christopher Street, we are still fighting to express ourselves and live our true identities in the place we spend the majority amount of our time—at work,” Lentz said. “We need to make sure we have the right to be ourselves in the work place.”
Despite the attendance of trans-exclusionary “feminists” holding a counter protest, LGBTQ protestors and allies stood strong with chants of “trans women are women” and “trans rights are human rights.” Around 100 activists engaging in a sit-in were arrested.
Actress and activist Laverne Cox and ACLU’s Chase Strangio, who have been raising awareness of this day for months, came out of the courthouse hopeful that they would have at least five Supreme Court Justices on their side, and proud to be a part of such an instrumental moment in LGBTQ history.