Three huge cases are hitting the high court this month that threaten to demolish our Title VII protections. Altitude Express Inc. v. Zarda and Bostock v. Clayton County concern the legal rights employers have to fire someone over their sexual orientation, while R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (EEOC) is about the unjustified termination of a trans woman. The plaintiffs in all three cases argue that Title VII of the Civil Rights Act of 1964 -- which bars discrimination against employees based on sex, race, color, national origin and religion -- also protects against discrimination on the basis of sexual orientation and gender identity. The employers cite religious reasons for the firings, as well as arguing that the text of Title VII does not explicitly include protections for LGBTQ+ employees.
Sexual predator and Supreme Court Justice Brett Kavanaugh walks through the capitol with homophobe and Vice President Mike Pence. Photo courtesy of Wikimedia.
Zarda and Bostock are gay men who argue that the discrimination they experienced was unjust under the protections of Title VII. The discriminatory nature of the situation is not enough to constitute an unlawful termination under the Civil Rights Act. Precedence from another case (Prince Waterhouse v. Hopkins, 1989) ruled that discrimination by sexual stereotyping is included under the purview of sex in the text of the law. The prosecutors for Zarda and Bostock argue that the employers have violated the legal precedence against such stereotypes set in 1989. Presumably, the employers would not have fired a woman for loving a man under normal circumstances. Firing a man for loving another man shows that heteronormative sex stereotypes were at play.
Aimee Stevens was an employee of Harris Funeral Homes. As a trans woman, she was terminated because it would be against “God’s commands” if the owner allowed her to “deny [her] sex while acting as a representative of [the] organization.” The defendant claims that protection against sex discrimination does not encompass gender identities.
The plaintiff arguing on Stevens’ behalf is the Equal Employment Opportunity Commission. The EEOC is a federal agency that enforces civil rights laws to defend against unjust workplace discrimination. They assert that Stevens was only fired because she defied cisgender stereotypes by presenting as female.
While this should be an easy win for the gays, the Supreme Court has changed under the Trump administration. Justices Neil Gorsuch and Brett Kavanaugh have swayed the vote far to the right, but this has not sealed our fate. Many of the conservative justices are textualists, meaning they make judgments solely on the writing of the law. To them, it does not matter if the law was meant to be inclusive of the LGBTQ+ community or if Title VII was meant to be expansive and inclusive for all oppressed minorities. The employers claim that writing of the law only covers discrimination on the basis of biological sex, not sexual orientation or differing gender identities. Zarda, Bostock, and the EEOC have argued the protection offered by Title VII is expansive and that the sexual stereotype provision from 1989 also applies.
These cases present a difficult decision for conservative justices: should they side with right-wing thought or stay true to textualist methods? Justice Neil Gorsuch, part of the conservative majority, has expressed sympathy for Aimee Stevens. He has stated that the text could be expansive enough to bar anti-trans discrimination.
However, Gorsuch also fears the “social upheaval” that a decision in favor of the employees would cause, supposedly thinking that banning discrimination would cause an international backlash. This fear is not reciprocated by public opinion polls conducted by the Marquette Law School showing 61% of respondents support inclusion of LBGTQ+ employees in Title VII of the Civil Rights Act. While justices claim not to consider public opinion, it is not uncommon for them to think about the progression of society. Even conservatives in the Supreme Court acknowledge that our ideals are much different today than they were when the bill was drafted.
This case does not only represent a danger for the queer community. If the court rules in favor of the employers, they will have repealed the sex stereotype clause of Title VII protections. Any employee — black, white, female, male, cisgender, transgender, non-binary — will be at risk of losing any protections they have. Without laws barring discrimination based on sex stereotypes, a woman could be fired for having short hair and a man could be fired for having earrings.
Zarda and Bostock are fighting a battle that has raged on for decades. Sexual orientation should have nothing to do with someone’s right for protection, yet with a conservative majority in the Supreme Court, years of progress are in jeopardy. A decision against Aimee Stevens will only further exacerbate the violence and oppression that trans people — especially women — face in this country. Eliminating protections for trans people in the workforce would have a domino effect on welfare, education, housing, and healthcare. If we allow this to slip by, we are allowing hate and violence to live on without consequence.
Protestors wave pro-LGBTQ flags outside of the United States Supreme Court in Washington, DC. Photo courtesy of Unsplash.