On Oct. 8 the U.S. Supreme Court will hear oral arguments in a case that will decide whether lesbian, gay and transgender workers can be fired for their sexual orientation or gender identity. Chase Strangio, a staff attorney with the American Civil Liberties Union’s LGBT & HIV Project and a nationally recognized expert on transgender rights, has described it as “the most important case directly addressing LGBTQ people ever to reach the United States Supreme Court.”
The oral arguments will involve three separate cases. The first, Zarda v. Altitude Express, involves a sky-diving instructor fired after disclosing he was gay. Similarly, in Bostock v. Clayton County, a beloved county social worker with favorable performance reviews was fired soon after joining a gay recreational softball league. The third case, Harris Funeral Homes v. EEOC, involves a funeral home worker who was fired after refusing to hide her transgender identity.
Central to all three is Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin. Title VII establishes that it is illegal for employers to treat employees differently based on their sex. In 1999 the Supreme Court ruled, in the case of Price Waterhouse vs. Hopkins, that Title VII applies to gender stereotyping as well.
The plaintiff in Price Waterhouse, Ann Hopkins, was denied partnership due to her bosses’ perspective that she was inadequately feminine. She was told that if she wanted to make partner she would need to wear makeup, walk and talk like a woman and style her hair (i.e., conform to heteronormative stereotypes of femininity).
Hopkins’ victory at the Supreme Court made it constitutionally impermissible for employers to treat employees differently because they do not perform their gender roles in ways prescribed by the employer. Hopkins was awarded nearly $400,000 and returned to Price Waterhouse, eventually leading one of the most diverse (as well as profitable) work teams in company history.
Dozens of federal district courts and state courts — including five federal appeals courts — have used the ruling in Price Waterhouse to protect transgender people against discrimination under Title VII. This makes sense. As the 11th U.S. Circuit Court of Appeals clearly explains, discrimination against transgender workers is sex discrimination because “a person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”
The Trump administration disagrees. The Department of Justice (DOJ) filed its brief in the Harris Funeral Home case Aug. 16. It justifies an employer’s right to fire an employee for being transgender by arguing that “proving discrimination because of sex requires showing disadvantageous treatment of members of one sex relative to similarly situated members of the other.”
This is a radical argument. Not only does the DOJ argue that transgender workers should have no protection from discrimination under Title VII, but it is asking the Supreme Court to overrule Price Waterhouse. It is essentially asking the court to overrule decades of precedent protecting employees from gender stereotyping in the workplace. It wants the court to create a world where employers wouldn’t be held accountable for sex discrimination based on sex stereotypes so long as they simply require both men and women to adhere to traditional sex stereotypes.
As Josh Block, another ACLU attorney, succinctly summarized on Twitter, the “DOJ just filed a brief with the Supreme Court saying it’s fine for employers to have dress codes prohibiting women from wearing pants.”
In this regard the DOJ is asking the court to go beyond the issue of whether or not it is illegal for employers to discriminate based on sexual orientation or gender identity under Title VII. Not only is the DOJ arguing that employers should be allowed to fire gay and transgender people due to their queer identity, it also is arguing that employers should be allowed to require cisgender people to conform to traditional gender norms.
The legal strategy is insidious. As Chase Strangio recently described in an opinion piece on NBC News: “It is almost as if the Trump administration is arguing that if transgender people might get protected from employment discrimination, then it is best that there be no protections for anyone. Which, actually, may be their endgame.”
The issue is being argued at a time when federal workplace protections against sex discrimination are desperately needed. There are only 21 states with statutes that protect workers against both sexual orientation and gender identity discrimination.
In addition, less than 15% of American wage and salaried workers are card-signing union members. As a result, the Organization for Economic Cooperation and Development recently ranked the United States last out of 71 countries when assessing worker protection from an employer’s firing — meaning that of the 71 countries ranked, employees in the U.S. are some of the least protected in the world when it comes to an employer’s right to fire.
The cases also have dire consequences beyond the world of work, as sex discrimination provisions are usually interpreted uniformly across federal civil rights statutes. If the Supreme Court adopts the reasoning from the DOJ’s brief, it would open the door to discrimination against gay and transgender folks (as well as any other person deemed to be living outside traditional representations of gender) in a host of other settings, including education, housing and health care.
Make no mistake, gay and transgender workplace rights are under serious attack. Nobody should be fired for their LGBTQ identity. An adverse ruling would potentially send millions of LGBTQ Americans back into the closet, as they would be required to balance risking their jobs against showing up to work as their full, authentic selves.
If that weren’t enough, the administration is using these cases as an opportunity to attack sex discrimination protections for all workers.
Unfortunately, outside of LGBTQ activist spaces and reporting, there has been little to no coverage of a Supreme Court case that could have a disastrous impact on not only LGBTQ workers but any American who shows up to work in ways that don’t fit traditional gender stereotypes.
Robert Trousdale is a former attorney and current active member of AFSCME Local 3801 at the University of Minnesota.