Two Supreme Court cases that will be heard this week could drastically undermine protections for LGBTQ workers.
On Tuesday, the Supreme Court will hear two cases about whether LGBTQ people can enjoy workplace protections against discrimination. Given the current makeup of the Court, it isn't likely to go well.
Both cases revolve around the scope of Title VII, which prohibits discrimination on the basis of sex. What that means is that jobs cannot say only a man or woman can do a specific type of job, nor can someone be fired based on being a man or a woman. These cases deal with whether that law also protects LGBTQ workers. Unsurprisingly, in both of those cases, the Trump administration is arguing LGBTQ workers should not have protections.
In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, the 6th Circuit Court of Appeals held that Title VII protected a trans woman, Aimee Stephens, who had been fired from the funeral home at which she worked. Stephens' former boss, Thomas Rost, is a conservative Christian who believes he is violating God's commands if he were to let Stephens dress in women's clothing. Additionally, Rost had imposed a sex-specific dress code on the employees at the funeral home — women were required to wear skirts and men to wear pants.
Under Obama, the Equal Employment Opportunity Commission pursued the case on behalf of Stephens, arguing that Title VII protected transgender workers and that the funeral home broke the law when it fired her. However, under Trump, the Department of Justice flipped, backing the conservative Christian owner.
This case presents two issues, both of them bad. The first is the possibility the Supreme Court might reverse the lower court and hold that Title VII does not protect trans workers. If that is what happens, it's a significant step backward in terms of civil rights protections, partly as a result of Trump being able to put two extremely conservative justices on the court. Trans people could then be fired simply for being trans and have no recourse under the law. Put another way, firing people who are transgender would be perfectly constitutional because the Court would say that discrimination on the basis of sex doesn't encompass discriminating against someone who is transgender. Individual states might be able to grant trans people greater protection under state laws, but there would be no way to sue in federal court for protection.
The second is that the Court is revisiting the notion of "sex stereotyping," whether employers can require employees to dress and behave in a stereotypically male or female fashion. People generally assume the latter issue has been solved for quite some time and that having an employer tell a woman she has to wear a skirt is obsolete, but that's exactly the position the DOJ is taking in this case. If the conservative funeral home owner — and the DOJ — prevail in this case, there's a genuine chance those sort of dress codes could return. This would be yet another way, along with denying birth control coverage to employees, that conservative Christians could impose arcane, outdated, and sexist views on employees.
The other case the Court will hear on Tuesday is Altitude Express v. Zarda, which deals with whether Title VII provides protection on the basis of sexual orientation. (This case was combined with another, Bostock v. Clayton County, which has the same issue.) In Altitude Express, an employee was fired from his job as a skydiving instructor after he disclosed he was gay. As with the trans rights case, the wrongfully fired employee won in the lower court. The Second Circuit Court of Appeals ruled that discriminating against someone based on their sexual orientation is a violation of Title VII.
The lower court reasoned that when an employer fires someone based on the fact they are lesbian or gay, they're firing them based on their stance about romantic and sexual relationships between the sexes. Some employers — often conservative Christians — believe that same-sex relationships are wrong, and want to fire employees for having those relationships. The lower court, rightly, disagreed and found that discriminating against someone based on their sexual orientation is a subset of discriminating against someone on the basis of sex. That's because, in this instance, a gay man was fired for being a man who has or may have a relationship with a man, but a woman who has a relationship with a man would not be fired — so the gay man is discriminated against because he is a man.
As in the funeral home case, the DOJ filed a brief arguing that lesbian and gay workers should be denied their rights. Their argument is based on the old-fashioned idea that, as they say in the brief, "the ordinary meaning of 'sex' is biologically male or female." The scientific community sees sex "as more complex than male or female, and gender as a spectrum that includes transgender people and those who identify as neither male nor female." That's because many people aren't easily classified as biologically male or female, based on genetic status or physical attributes. The DOJ brief ignores that science to plow ahead and argue that firing someone based on their orientation doesn't mean they're being treated worse than members of the opposite sex.
This Supreme Court is a court with a very solid conservative majority now. When Justice Brett Kavanaugh replaced Justice Anthony Kennedy, the "swing vote" of the Court was removed. Kennedy sometimes ruled conservatively, but also sometimes ruled in favor of expanding protections to LGBTQ people, such as his opinion finding same-sex marriage constitutional. There's no reason to think Kavanaugh will do that, though. During his confirmation hearings, he refused even to say if the same-sex marriage case was correctly decided.
If these cases are reversed and the employers prevail, LGBTQ people will be stripped of workplace protections. They can be fired simply for being who they are.
That's not justice.
Published with permission of The American Independent Foundation.