The hottest ticket in Washington, D.C. today isn't to a show, a movie, a concert or a gallery. People have been waiting in line outside the United States Supreme Court since the weekend, vying for one of the few seats the court makes available to the public to hear oral arguments today. No television cameras are permitted inside. While there will be audio of the proceedings, those who do snag a seat will witness history firsthand.
The justices will hear three cases today that are the Supreme Court’s first on LGBTQ rights since the retirement of Justice Anthony Kennedy, who was the author of the landmark Obergefell ruling in 2015 that legalized same-sex marriage throughout the United States.
The issue in the cases of Don Zarda, Gerald Bostock and Aimee Stephens will determine whether LGBTQ employees are protected from discrimination on the job by a key provision of the Civil Rights Act of 1964 that prohibits discrimination in employment because of sex.
A decision is expected by early summer 2020, right smack in the middle of the U.S. presidential election campaign.
The New Justices
Kennedy's replacement, Justice Brett Kavanaugh, will be closely watched for the questions he asks today. Prior to his controversial confirmation last summer, LGBTQ advocates lamented that even though none of Kavanaugh’s roughly 300 opinions as an appellate judge dealt directly with issues relevant to their community, his conservative background makes him unlikely to vote as Kennedy did.
As Amy Howe wrote on the SCOTUS Blog site, another Trump appointee, Justice Neil Gorsuch, will also be closely watched. Gorsuch has followed in the footsteps of Justice Antonin Scalia, whom he succeeded, in adhering strictly to the text of the statute. But Howe notes Scalia himself is cited by lawyers for Zarda and Bostock, two gay men whose cases will be heard first, and together.
Scalia was the author of a unanimous Supreme Court decision in 1998, which held that same-sex sexual harassment is a violation of Title VII. Scalia wrote that although “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed."
Lawyers for the skydiving company Zarda worked for and the Georgia county where Bostock worked argue a ruling in the gay men's favor would "rewrite" Title VII, and suggest this is best left to Congress, which for decades has been reluctant to enshrine equality for all into law.
The First Transgender Rights Case Ever Heard By The High Court
The case of Aimee Stephens, R.G. & G.R. Harris Funeral Homes v. EEOC, will be argued separately from Zarda and Bostock and is different in that it hinges on a definition of "sex" in Title VII that includes gender identity.
A few months ago, I spoke with ACLU attorney Chase Strangio, a trans man working on Stephens' case, who told me by phone that Stephens' fight is one many trans people like us know all too well.
"Her story is just sadly so common, where so many trans people wrestle with the truth of our existence internally, and then find a strength to come out only to face retribution, and in a variety of ways; in her case by being terminated by her employer," said Strangio.
For six years, Stephens was a funeral director in Michigan and was identified in employment records as a man. Thomas Rost, who describes himself as a devout Christian, fired Stephens two weeks after she came out in a letter to him, identifying as a transgender woman. Stephens recalled Rost telling her, "This is not going to work." Rost claims that allowing Stephens to wear clothes matching her gender identity would not only violate his funeral home’s dress code but that he would be “violating God’s commands” by allowing Stephens to dress in such a fashion.
The funeral home is asking the justices to review the decision by the U.S. Court of Appeals for the 6th Circuit in favor of the federal Equal Employment Opportunity Commission and Stephens. They will consider whether Title VII bars discrimination against transgender people based on either their status as transgender or sex stereotyping under the Supreme Court’s 1989 ruling in Price Waterhouse v. Hopkins. That decision held that a company can’t discriminate based on stereotypes of how a man or woman should appear or behave.
"I'm very confident in the arguments here," Strangio told me. "I think it's really a straightforward case. It is a case that would require the court to go out of its way to cut people out of a statute where the protections are so clear. On the face of the statute, though, I'm confident in the legal arguments regardless of who's on the court. I think there is a straightforward path to continuing to ensure that LGBT people are protected under existing federal law. And you never know with the Supreme Court. You never know with any court. And so you just do your best and present the clearest arguments and that's what we're doing."
The ACLU, which represents Stephens, has dozens of elected leaders from towns and cities to House Speaker Nancy Pelosi and major corporations on their side, having filed amicus briefs.
And then there's the other side. Anita Y. Milanovich and something called the Independent Women’s Forum and 1,013 individual athletes and parents from around the country submitted a friend-of-the-court brief supporting Harris Funeral Homes. In USA Today last month, Milanovich hypothesized that the Stephens case is a threat to girls' and women's sports: "Not only should business owners be able to rely on the plain meaning of the law, courts shouldn’t take on Congress’ job and reinvent the meaning of 'sex.' Doing so would fundamentally redefine what it means to be a 'girl' or a 'woman' by judicial fiat and inject confusion, if not chaos, onto the track and the field, into the pool and the locker room."
It's Already Legal To Be Fired For Being LGBTQ
The fact is, even before the sound of the gavel is heard this morning in those hallowed chambers, employers in 28 states can fire workers for no other reason than they are lesbian, gay, bisexual, transgender or queer. And the official position of the U.S. government is, that's okay.
The Trump Administration's policy varies from the Obama era in that its Justice Department is siding with the employers, and defending discrimination. It's also at odds with its own Equal Employment Opportunity Commission, which has defended the interpretation that "sex" in Title VII protects victims of discrimination based on their gender identity as well as sexual orientation. This interpretation has been upheld in several federal court cases.
Yet this gap in protections against discrimination is not new, even if most Americans are blissfully unaware of this disturbing fact. "Most" in this case specifically means those of us who identify as heterosexual ("straight") and cisgender ("not transgender").
Let's face it: there are many in this broad swath of the population who actually use the word "normal" to contrast themselves from LGBTQ Americans. And while that may be their view, the question today is how many of the nine justices of the highest court in the land feel that way? How many will be swayed to support those of us who are "different," and endangered?
The LGBTQ community includes an estimated 8.1 million workers across the country. All told, there are an estimated 11.3 million LGBTQ people living in the U.S., according to the Williams Institute at the UCLA law school. According to the Movement Advancement Project, 46 percent of this community lives in the 18 states and Washington, D.C., where they are protected by a large number of civil statutes blocking discrimination based on sexual orientation and gender identity. Only six percent live in the four states with little to no protections: Alabama, Georgia, Tennessee and South Dakota.
Those four states received a poor grade along with 24 others in the latest Equality Index report by the Human Rights Campaign: Alaska, Arizona, Arkansas, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, Virginia, West Virginia and Wyoming.
Their America is a different place than the one I enjoy in Connecticut, where state laws will protect me should the judicial branch of our federal government let me down. But when I travel across this great land, as I often do, I wonder how will I be treated in one of those 28 states? How will my identity as a transgender woman be challenged should the Supreme Court decide discriminating against me is legal? What of my friends who call any one of those states home?
Is This Doomsday?
The author and advocate Brynn Tannehill predicted in 2018, "We are likely going to see most of the work of the past 50 years erased... The odds are, if you’re reading this, you will not live to see all the damage that’s coming in the courts undone.
All the legal and legislative progress made since Stonewall will be rendered moot in the next 10 years, there’s probably nothing we can do to stop it, and it will take decades, at a minimum, to get it back... 40 years’ worth of efforts to pass laws to protect LGBT people from discrimination in the market and in the workplace are about to be rendered moot. Between losing Title VII protections, and losing protections to a constitutionally enshrined religious right to discriminate, there will functionally be no legal protections left for LGBT people.
We will know whether we are doomed soon enough. I myself will not wait for the ruling that will likely come down next June. Just in case, I've already ordered a passport to return to the country my grandparents fled a century ago, seeking opportunity and freedom. It saddens me to no end to think of their beloved adopted homeland as a nation where my rights as a born and bred American are limited because of who I am.
