Historic Supreme Court arguments Tuesday in LGBTQ workplace rights dispute

Aimee Stephens finally mustered the courage back in 2013 to tell her co-workers about something that she had struggled with her entire life: her gender ident...

Posted: Oct 8, 2019 3:45 AM
Updated: Oct 8, 2019 9:30 AM

Aimee Stephens finally mustered the courage back in 2013 to tell her co-workers about something that she had struggled with her entire life: her gender identity.

'I have known many of you for some time now,' Stephens explained in a letter, and then she told them she had decided to have sex reassignment surgery and reject the sex she'd been assigned at birth.

'The first step I must take is to live and work full-time as a woman,' Stephens wrote. 'I will return to work as my true self, ' she added, 'in appropriate business attire.'

Not long after, she was fired from her job as the director of a funeral home. She sued.

On Tuesday, the Supreme Court will consider her arguments that federal civil rights laws barring workplace discrimination based on sex also encompasses gender identity.

'We have the same basic human rights that everyone else does,' Stephens said during a recent event in Washington hosted by her legal team at the American Civil Liberties Union.

Stephens' case marks the first time the Supreme Court will hear arguments regarding the civil rights of a transgender individual.

The outcome of her case and a companion case concerning whether the law also protects claims of sexual orientation, could have critical implications for the LGBTQ community made up of approximately 1 million workers who identify as transgender and 7.1 million lesbian, gay and bisexual workers, according to UCLA's Williams Institute.

The case comes in the wake of the Supreme Court's decision in 2015 clearing the way for same-sex marriage nationwide. But there is a critical difference. That opinion --- Obergefell v. Hodges -- was decided when Justice Anthony Kennedy, seen as a champion for LGBT rights, was still on the bench. He's since been replaced by Justice Brett Kavanaugh, considered to have a more conservative outlook. The court's eventual decision -- on an issue that is a touchstone for each party's base -- will come down in the heat of the presidential election.

Twenty-two states, plus the District of Columbia have statutes protecting workers based on sexual orientation, according to the Williams Institute. Twenty-one states plus DC have statutes protecting workers from discrimination based on gender identity.

Supporters of LGBTQ rights say there is a lot on the line.

'It would be huge for the LGBT community to have protections in the private sector from employment discrimination, which is pretty much a rampant problem to this day,' said Paul Smith, a professor at Georgetown University Law Center, who argued and won a landmark gay rights case in 2003.

He notes that federal employment protections have been a goal for decades, and that a win for the LGBTQ community could inspire changes in other areas of the law including claims of housing discrimination.

Split between Trump and Obama administrations

During two hours of arguments Tuesday, the justices will hear from Solicitor General Noel Francisco, who argues that the law does not bar discrimination based on transgender status or sexual orientation.

In court briefs, Francisco said that the case isn't about whether as a 'matter of policy' Title VII of the Civil Rights Act of 1964 should forbid discriminating on the bases of transgender status or sexual orientation. It's about the fact that, from his perspective, the current law doesn't provide those protections. Congress would need to change the law.

The case also highlights a difference between the Trump administration and that of the previous administration. During the Obama administration, the Equal Employment Opportunity Commission, an independent agency responsible for enforcing federal law that makes it illegal to discriminate based on sex, took the position that federal law does encompass protections for gender identity and sexual orientation. That is the position of the agency today, as posted on its website.

The Trump administration reversed course.

Stephens won when the lower court noted that her former boss, Thomas Rost, had testified that Stephens was fired because she 'was no longer going to represent himself as a man.' (Rost refused to address Stephens with feminine pronouns.)

A panel of judges from the 6th US Circuit Court of Appeals held that it is 'analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex.'

David Cole, the National Legal Director for the ACLU believes the lower court got it right. 'In discharging Ms. Stephens for being transgender,' Cole wrote, the funeral home 'contravened Title VII's core premise: that employees should be judged on their merit, not their sex.' He also argued that the funeral home violated the law by firing Stephens for 'failing to conform to sex-based stereotypes.'

While Cole focuses on transgender rights, Pamela Karlan of Stanford Law will represent Gerald Bostock, a gay man from Georgia who had been employed as a child welfare services coordinator and said that he was fired after his bosses learned that he was gay and served on a gay recreational softball league. She is also representing the estate of Donald Zarda, who had been employed as a skydiving instructor and made similar claims. Zarda died in an accident in 2014 but he is now represented by his estate.

In legal briefs, Karlan told the justices that the law's 'commitment to providing workers with equal employment opportunities without regard to their sex requires protecting people against discrimination for being lesbian, gay or bisexual.'

Judges in dissent and in the majority on the various appeals courts hearing the cases have struggled with the cases and legal experts believe the issue might skew along traditional liberal and conservative lines, if some of the justices look to the plain text of the law.

For advocates on the side of the LGBT community to get five justices on their side, former Solicitor General Paul Clement said at the Georgetown Law event, they might 'start with the left side of the court' and then get a conservative 'textualist' who could focus on the plain words of the law.

But John Bursch, a lawyer representing the R.G and G.R Harris funeral home owned by Rost and his wife Nancy, said that 'Stephens' view drastically expands the meaning of sex discrimination and rewrites Title VII to add protected categories that Congress never included.'

He said that if Stephens were to prevail, the ruling would spill over into other federal laws that prohibit sex discrimination.

Although Rost, working with the conservative Alliance Defending Freedom, declined to be interviewed before arguments, in a video on the group's website he said the decision was 'very, very difficult for my staff and for us as a family, we just want to serve families well.'

A group called C12, which calls itself the largest network of Christian CEO's, and business owners in the United States, says in their own brief that Congress could not have intended to include protections for gender identity and sexual orientation because 'the concept of including such traits in an anti-discrimination law was unheard of in 1964.'

But 206 businesses—including Apple and Amazon have filed their own brief taking the opposite position and noting that they have over 7 million employees and comprise over $5 trillion in revenue.

'No one,' they argue 'should be passed over for a job, paid less, fired, or subjected to harassment or any other form of discrimination based on their sexual orientation or gender identity.'

And lawyers for more than 20 states point to a 2008 survey from the Human Rights Campaign that 42% of lesbian, gay and bisexual people reported having suffered from at least one form of employment discrimination. Data from the 2011 National Transgender Discrimination Survey found that nearly all of those surveyed -- 90% -- had experienced 'harassment or mistreatment' on the job.

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