LGBTQ+ people and allies alike were glued to the news on Tuesday as the Supreme Court began answering a historic question: Should U.S. workers be protected on the basis of gender identity and sexual orientation under Title VII of the 1964 Civil Rights Act?
Three cases are on the floor, and their outcome will have the power to amend our country’s current workplace discrimination laws, which currently don’t include LGBTQ+ workers. In the first case, the Equal Employment Opportunity Commission (EEOC) is arguing on behalf of a transgender woman who was fired after coming out to her employer and will contend that discrimination based on gender identity should be illegal. The other two cases both concern gay men and will be consolidated into one. Lawyers are positioned in favor of protections based on sexual orientation, as both individuals allege that they were terminated for being openly gay in the workplace.
This is the first major case concerning LGBTQ+ rights since the 2018 resignation of Justice Anthony Kennedy, who famously argued in favor of same-sex marriage in the case Obergefell v. Hodges. Now, under the Trump presidency, the court contains more conservative-leaning justices.
On Tuesday, arguments over whether to extend protections also called into question the definition of the word “sex” as a basis of discrimination, and whether or not the landmark Civil Rights Act should be amended at all. Conservatives argue that as these cases seek to alter historic laws, it would call into question other laws containing the word “sex,” and how this word will be defined constitutionally from here on out.
"Discrimination against LGBTQ people is sex discrimination, and LGBTQ people are thus entitled to protection under the Civil Rights Act,” says Amit Paley, CEO & Executive Director of The Trevor Project. In a statement to Refinery29, Paley goes on to say that this fight is for the future of LGBTQ+ people throughout the U.S. “We have heard their stories, supported them during their struggles, comforted them in the face of discrimination, and worked to ensure their legal and lived equality.”
It’s a landmark moment that could decide the fate of LGBTQ+ workers throughout the country. Here’s what you need to know about each of these three cases and why they are so important in the greater fight for equal rights.
First, what is Title VII?
Title VII is a section of the 1964 Civil Rights Act which prohibits workplace discrimination based on sex, race, color, national origin, and religion. It applies to all federal, state, and local governments, including both public and private universities, agencies, and labor organizations. Currently, it does not specifically protect LGBTQ+ people based on gender identity or sexual orientation. This means that, as it stands, all people who openly share their gender identity or sexual orientation are legally allowed to be fired on those grounds. That is the heart of this case: whether these categories should be a part of protections against workplace discrimination.
Case 1: R.G. & G.R. Harris Funeral Homes v. EEOC
In 2013, Aimee Stephens was working as a funeral director and certified embalmer at R.G. & G.R. Harris Funeral Homes in Michigan when she wrote a letter to her employer that would change her life. “What I must tell you is very difficult for me and is taking all the courage I can muster,” she wrote in a letter explaining that she was transgender. Stephens, who was assigned male at birth, told her boss Thomas Ross that going forward, she would abide by the company's dress code for women — and she did just that. But Ross found this to be a “problem,” referring to Stephens as a “distraction,” and ultimately stated that she didn’t follow a proper “male dress code.” He fired Stephens two weeks later.
After Stephens’ termination, she filed a complaint with the EEOC, which sued her former employer. First, the Detroit District court ruled against Stephens, stating that transgender discrimination wasn’t protected under Title VII. The EEOC then filed an appeal under the Sixth Circuit court, which was unanimously supported by a panel of three judges. According to the circuit court judges, “An employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align." Now, Harris Funeral Homes is taking the case to the Supreme Court to argue in favor of its decision to terminate Stephens’ employment on the grounds that she didn’t adhere to a male dress code.
Case 2: Bostock v. Clayton County, GA
Gerald Bostock spent 10 years working at a juvenile court in Clayton County, GA. Bostock was a child welfare services coordinator whose job was to train and assign volunteers who would represent abused and high-risk children in court. He was openly gay at work, and was ousted from his “dream job” shortly after joining the Hotlanta Softball League in January 2013. When he joined the recreational team, a safe space for Atlanta’s LGBTQ+ community, it was the first time Bostock’s sexuality came into focus in his workplace, where he was subjected to everything from gossip to outright homophobic slurs.
That June, Bostock was fired for “mismanaging funds,” a claim he has vehemently denied. He claimed that the firing was based on his sexual orientation, and said he recognized that he would be going up against county officials in court. But faced with the loss of his income and health insurance, and in the process of recovering from prostate cancer, he decided to take his chances and fight back. Bostock sued Clayton County in federal court citing Title VII charges, which were dismissed in both trial and federal court for not meeting Title VII’s requirements of discrimination. Now, in an appeal to the Supreme Court, Bostock will argue to extend Title VII protections to include sexual orientation.
Case 3: Altitude Express Inc. v. Zarda
Donald “Don” Zarda turned a recreational passion for skydiving into a full-fledged career. By 2010, Zarda had spent two decades as a skydiver-turned-instructor. He worked for Altitude Express Inc., a Long Island, NY-based skydiving facility where he assisted and instructed first-timers in tandem diving. It was fairly ritual in his role to strap himself to strangers about to jump, and part of the thrill of his career was to experience that rush along with them. But, one fateful leap in October changed everything. A particularly nervous student approached Zarda as he began to harness their gear together. Her boyfriend stood by watching, but Zarda assured her that he was “100% gay” and she had nothing to worry about. Shortly after, the woman’s boyfriend complained to Altitude Express about Zarda, saying that she was made to feel uncomfortable during her skydiving experience. Zarda was promptly dismissed, with his employer stating that he behaved inappropriately in the workplace.
After filing a suit against Altitude Express Inc. based on Title VII violations, Zarda was overruled by two New York courts. In 2014, amid pursuing appeals on his case, Zarda died in a base-jumping accident in Switzerland. His fight did not stop, though, as his family trudged his case through the EEOC, which declared for the first time that year that it believes sexual orientation should be considered “on the basis of sex” discrimination. In July 2017, the Trump administration, amid an ongoing effort to ban transgender people from the military, argued against Zarda’s case, stating that Title VII should not protect sexual orientation.
How will the decisions of the Supreme Court affect LGBTQ+ workers’ rights?
The Supreme Court will hear arguments from both sides on whether to revamp the Civil Rights Act to legally protect LGBTQ+ workers. The legal teams opposing the potential amendments to Title VII will do so on the basis of how the word “sex” is defined in the Civil Rights Act. They are arguing that sexual orientation and gender identity don’t fit under Title VII.
The EEOC stated during the decade-long case on behalf of Zarda that it does recognize LGBTQ+ people as protected by the law, but according to federal law, they aren’t. Given the Trump administration’s effort to upend LGBTQ+ protections put forward by the Obama administration, it will be taking the opposing argument and seeking to maintain Title VII as is.
No matter what it will be, the Supreme Court’s decision is expected to affect approximately 1 million transgender-identifying workers, and over 7 million gay, lesbian, bisexual, and queer workers in the U.S. These cases could not only potentially alter a significant decision that’s been upheld as a standard since the ‘60s, setting a precedent for LGBTQ+ rights nationally, but also provide strongly needed workplace protections.