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LGBT issues

Inside the Supreme Court discrimination cases that could change LGBTQ rights

The Daily Beast

September 3, 2019

On Oct. 8, the Supreme Court is set to hear three landmark LGBTQ workplace-discrimination cases. As Tim Teeman reports, they are as intensely personal as they are political.

Until 2012, Aimee Stephens was, in her own words, “basically leading two different lives, one for work and one for home.” At work she dressed and presented as a cisgender man. Outside of work she dressed as, and could simply be, who she was: a woman.

“In 2012, it came to a boiling point,” Stephens told The Daily Beast. “I didn’t know if I could go forward. I knew for sure I couldn’t go backwards, so where does that leave me? And if that’s all there was, what was the point? So, in November 2012 I considered taking my life and getting it over with. I stood in the backyard with a gun to my chest for an hour. But I came to the conclusion that I couldn’t do it—that I liked me too much. I made the choice to live. And it was shortly after that that I drafted the letter to my boss.”

It was that letter that Stephens, 59, said led to her getting fired by her employer, R.G. and G.R. Harris Funeral Homes in Michigan, after six years of working as a funeral director. Stephens claims she was fired after she told her boss in the letter that she was transgender, and would henceforth be dressing according to the firm’s female dress code.

In March last year, the Sixth Circuit Court of Appeals ruled that Stephens—whose case is being supported by the American Civil Liberties Union (ACLU) and the Equal Employment Opportunities Commission (EEOC)—was unlawfully fired and that federal sex discrimination laws protect transgender people. The funeral home is challenging that ruling at the Supreme Court.

On Oct. 8, Stephens’ case will be one of three to be heard by SCOTUS, which will consider—and ultimately adjudicate—if current sex discrimination laws protect LGBTQ people from workplace discrimination. The cases represent as momentous a moment for LGBTQ rights and equality at the Supreme Court as the Defense of Marriage Act and marriage equality rulings did in 2013 and 2015 respectively.

The cases are being heard against the backdrop of the stymied passage of the Equality Act, which would enshrine anti-LGBTQ discrimination protections in federal law (28 states presently have no protections for LGBTQ employees). The Act passed in the House of Representatives, but has little chance of getting passed in a Republican-controlled Senate.

The other two SCOTUS cases will test if the current sex discrimination laws cover gay people, and will be heard together as they both focus on sexual orientation.

In 2010, Donald Zarda was fired from his job as a skydiver with Long Island company Altitude Express after coming out to a customer. Zarda died in a base jumping accident in Switzerland in October 2014, and his sister Melissa and his surviving partner Bill Moore are spearheading the case in his memory at SCOTUS, supported by the ACLU alongside lawyer Greg Antollino and Pam Karlan of the Stanford Law School Supreme Court Litigation Clinic.

The trial court found that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin, did not cover sexual orientation. The U.S. Court of Appeals for the 2nd Circuit reversed that holding, claiming that sexual orientation discrimination was a subset of sex discrimination.

Like Stephens’ funeral firm, Altitude Express has taken the case to the Supreme Court. They argue that Zarda had touched a female customer “inappropriately” (which Zarda’s family denies). Zarda had told the customer that he was gay, as he prepared to jump with her, to defuse any awkwardness with them being strapped together.

That customer, argued Zarda’s lawyers, was homophobic. Altitude also alleged Zarda had behaved “inappropriately” in the workplace. Zarda claimed part of the discrimination he endured was because he “did not conform to the straight male macho stereotype.”

Melissa Zarda told The Daily Beast: “It’s pretty heavy. I feel like I owe this to my brother to fight as long as I can and if this case results in helping anybody in the LGBTQ community it just feels like the right thing to do. It is incredibly meaningful to do this in my brother’s memory.

“We talked about the case non-stop. This was so important to him. He was so upset by this case. I don’t know if he would have believed it would get this far, but he would be really excited to see it go as far as it has. I know he’s glad everyone has continued the fight.”

In the third case, Gerald Bostock, a gay man fired from his job as a child welfare services worker by Clayton County, Georgia, also claims to have been a victim of unfair discrimination based on his sexual orientation. As summarized in SCOTUSBlog, Bostock claimed that the county falsely accused him of mismanaging public money, when it really fired him for being gay.

The district court ruled that Title VII did not cover sexual orientation, a ruling upheld by the U.S. Court of Appeals for the 11th Circuit, and so Bostock has brought his case to the Supreme Court.

Bostock and his lawyer, Brian J. Sutherland, a partner at Buckley Beal in Atlanta, declined to be interviewed for this article. In a statement, Sutherland wrote: “At this time, we believe our court filing demonstrates the importance of this issue. We look forward to the hearing and to helping ensure all LGBTQ people are free from discrimination in the workplace.”

In responses to the three cases submitted to SCOTUS, the Trump administration—led by Solicitor General Noel J. Francisco and Department of Justice attorneys—has argued that Title VII does not include sexual orientation or gender identity, and therefore it is perfectly legal to fire and discriminate against people on the grounds that they are LGBTQ.

“Unfavorable treatment of a gay or lesbian employee as such is not the consequence of that individual’s sex,” the Justice Department argued, “but instead of an employer’s policy concerning a different trait—sexual orientation—that Title VII does not protect.”

The Department of Justice has also filed an amicus brief in support of Stephens’ employer, meaning that the federal government—as well as arguing it should be legal to fire and discriminate against someone just because they are transgender—is effectively arguing against itself as the EEOC is on Stephens’ side.

“We have a path to victory”

Ria Tabacco Mar, senior staff attorney with the ACLU’s Lesbian Gay Bisexual Transgender & HIV Project, told the Daily Beast: “I certainly know better than to predict what the Supreme Court is going to do, but I do think LGBT folks have reason to be optimistic here. I think we’re right on the law. Title VII of the Civil Rights Act prohibits discrimination because of sex, and I think as the lower courts rightly recognized it is impossible to disentangle discrimination because of sex and discrimination because of sexual orientation.”

Tabacco Mar said that over 200 well-known American businesses have submitted testimonies to the Supreme Court arguing in the LGBTQ employees’ favor in their cases.

“They say that inclusive workplace policies are good, and have increased productivity and retention rates,” said Tabacco Mar. “They are asking the Supreme Court, ‘Regulate us now, we want these rules to apply to us.’”

In Zarda’s case, said Tabacco Mar, if he had been a woman, she would not have been punished for being attracted to men; therefore his sex is key.

The cases involve observing statute, not the Constitution, Tabacco Mar asserted, so those justices on the court “not inclined to take an expansive view on whether the Constitution protects LGBTQ people this case is free of that question. You do not have to agree that Obergefell (the marriage equality case) was rightly decided to find for the LGBTQ employees here. I think that is critical when you look at the current make-up of the court compared to when the marriage equality decision was taken.

“We have a path to victory that includes justices who may not agree with the marriage equality decision, but who can interpret the words of the statute to mean what it says. Those are the votes we need. Those are the votes I think we can get. I think these cases will test whether the conservative justices are true to their textualist principles, which actually cut in favor of the LGBTQ employees here.”

Anthony Michael Kreis, visiting assistant professor of law at Chicago-Kent College of Law, told The Daily Beast that even conservative judges have recognized trans people enduring discrimination because of “classic sex stereotypes.” A concern, he said, would be if “hot button topics” like bathroom access and dress codes would give the SCOTUS justices’ pause.

When it came to sexual orientation, Kreis’ mind went back to Chief Justice Roberts stating, when the court debated same sex marriage in 2015, “I’m not sure it’s necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”

This echoes in the arguments over the employment cases, said Kreis. But whether the court will rule in favor of LGBTQ people is “50-50,” Kreis said.

Chief Justice Roberts could provide the swing vote, Kreis thought, but if he doesn’t all eyes will go to Justices Kavanaugh and Gorsuch. “Even though they are both conservative, they apply very different principles, which means they could diverge on their decisions. Kavanaugh is more of a typical conservative as we think of them, but he is a textualist and these arguments are very grounded in textualism. If you get Justice Kavanaugh on board with the sex/sexual orientation analysis you probably have Chief Justice Roberts too.”

The Trump administration telling the Supreme Court that it should be legal to fire someone just because they are gay is “partisan gloss,” and not reflected in the decision of the lower court, Tabacco Mar said. “They are trying to make into a political issue when really what this is about is what text of the statute means.”

The Supreme Court is mindful of the era it is sitting in, said Kreis. “The court doesn’t like to be out of step with public opinion, particularly on hot-button issues like this. They will really think about these cases.”

Kreis laughed. “Of course, there is also the chance I am wrong, and their priorities about LGBTQ rights and claims color their perspectives too much and they won’t make the connections that others do. Justices Kavanaugh and Gorsuch are the ones to watch. It is conceivable and plausible that either one of them votes for the LGBTQ employees, but time will tell.”

When it came to Stephens’ case, Tabacco Mar said, there was “no way” to separate her being fired because she is transgender from her sex. There was no objection to her work performance. “The only objection was to her living openly as a woman—something the employer would have had no objection to if Aimee had been assigned female at birth. She was assigned male, which led to her employer rejecting who she was, and so putting her out of a job.”

“We’ve got a powerful history of Supreme Court interpretation of the sex provision to include broad forms of discrimination based on sex,” said Tabacco Mar.

The ACLU is referring to a 1989 SCOTUS case involving Ann Hopkins, a Price Waterhouse employee who sued her employer after she was denied partnership because her firm objected to how she dressed and did her make-up.

“Aimee’s case flows on from that: We can’t be judged on the kind of man or woman we are. Our sex should be irrelevant to employment decisions. The same applies to men like Don—men who are not considered the ‘right kind of men’ because they are gay or bisexual.”

Some observers have said the sex discrimination laws should not be “extended” in this way—but Tabacco Mar disputes these LGBTQ cases are “extending” the law at all. “We’re talking about applying the law to a particular form of discrimination.”

When the Supreme Court ruled in favor of Hopkins, it made clear that gender stereotyping was as actionable as sex discrimination. Such cases test our increasing understanding of what sex discrimination looks like, said Tabacco Mar. In 1998, the Supreme Court accepted that a male oil rig worker had been sexually harassed by his male co-workers; it was conservative justice Antonin Scalia who wrote the decision for the court.

“The Supreme Court will not be willing to roll over for the Trump administration just because the Trump administration says so,” said Tabacco Mar. “Hopefully, the justices will continue their trend of skepticism.”

“We are not asking for anything special. We just want the basic human rights that we should already have”

When we spoke, Aimee Stephens was “hanging in there.” She had a terrible cough, and was resting after one of her regular dialysis treatments, her kidneys having failed in 2014. “I’ve had a few good days in the last week, so all in all I’m OK,” said Stephens. “It’s very draining. I come home exhausted and take a nap, after each treatment. I guess I will be on dialysis as long as I live.”

Overall, Stephens wishes her case wasn’t headed to SCOTUS, “because I already won in the lower court. But it is what it is. Maybe now we’ll get clarification on it from this point on and know where we stand. When it first started out, I didn’t even think about the fact it could end up in front of the Supreme Court, but now that it has: Bring it on and let’s get it done.”

In 2012, having moved beyond the thoughts of suicide she recalled at the beginning of this article, Stephens gave her boss the letter informing him of her transition, laying out “where I was at in my life and what was going on and where I needed to be. It said I would come back from vacation in my true self, dressed appropriately in women’s attire according to what that was at the funeral home.”

Her boss looked at the letter, “and said, ‘This is not going to work,’ and handed me a letter of dismissal along with a severance package.” If she accepted those terms, said Stephens, she would have “signed away all the rights I had to see him in court.” Stephens came home, talked to her wife Donna, and both decided to reject the severance package. Then they got in touch with the ACLU.

Stephens’ former boss, Thomas Rost, has said he would have felt he would be “violating God’s commands” by allowing Stephens to come to work as a woman. As Bloomberg Businessweek reported, the right-wing group Alliance Defending Freedom, which is representing the funeral home, said that letting Stephens come to work dressing and presenting as a woman would “disrupt the healing process of grieving families.”

Getting fired from the funeral home, “bothered me a lot,” said Stephens, “because I had been doing my job and doing it well, and I didn’t understand why what was happening had any effect on my job performance. Basically, they fired me because I was transgender.”

In a lower court, Stephens discovered her employer had used the reasoning that she didn’t adhere to the dress code.

“I was perfectly willing to adhere to the women’s dress code. His problem was he didn’t see me as a woman. He saw me as a man and therefore if I did not wear a coat and tie I wasn’t adhering to his dress code. He never got to see me as a woman.”

The case, said Stephens, had been “a rollercoaster ride,” after she realized this kind of discrimination had not just happened to her. “I took up this fight not just on my behalf, but for everybody, all transgender people.”

Stephens was born and raised in Fayetteville, North Carolina, and moved to Michigan 20 years ago. She thinks her sisters realized “something was different” with her. Her biological father died when Stephens was 1, the man her mother remarried “is the only dad I’ve ever known.” She took on his surname as her own.

From a young age, Stephens said she knew she was “different,” but didn’t know how—this was many years before the internet or when trans issues were discussed. “I was brought up down South. It certainly wasn’t something we talked about every day.”

Finally, through the internet Stephens realized she wasn’t alone, but wasn’t sure “what to do about it.” She started to see a supportive therapist in 2008, Stephens began to “get clues about what I needed to do.”

Donna, Stephens said, has been “right by my side. We’ve known each other basically all our lives. We were best friends growing up.”

Both had been married previously before marrying each other 20 years ago. “We’ve been together ever since,” said Stephens. “We didn’t foresee any reason to grow apart (after her transition). You don’t just walk away and leave your best friend. It took her a little while to accept everything that was happening as it would anybody, but there was no talk of us getting divorced or me moving out. We worked through it and here we are.”

Stephens’ mother died in 2003, long before her transition in 2012. “I wrote my dad a personal letter, and put pictures in it. When he had read it, he told my sister that I made a better-looking woman than I ever did a man.” He died this year.

Stephens’ sisters are very supportive. They all speak two or three times a week. The rest of her family has been mostly supportive, except for one aunt “who told me I didn’t exist any more” when Stephens began her transition. “Since then, she’s come around. In fact I saw her, earlier this year down south, and she came up to me, hugged my neck and told me, ‘I still love you, I still care about you.’”

“If I had to do it all over again I would,” Stephens said. “And to other transgender people on the verge of coming out, wondering what to and how to do it, I would say, more than anything else you have got to be true to yourself. If you can’t be true to yourself you’re not only not going to be true to yourself, you’re not going to be true to anybody or anything else. It’s not easy, it never will be, but it’s something that’s worth it in the end.”

Stephens got her first job in a funeral home in the early ’80s when still at college in North Carolina. The work bothered her at first. She couldn’t sleep after helping prepare the first body she ever embalmed. “But I told myself, ‘Look, you gotta work here if you want to stay in school. Learn to live with it, or else.’” Her career in funeral homes began.

Before her health problems, after her funeral home job ended, Stephens worked as an autopsy diener, cutting and removing organs for pathologists to look at. It was a natural flipside of the funeral home work she had done, preparing dead bodies for families and loved ones to view.

After her kidneys failed, Stephens has not been able to work. She is “wiped out” after her three-times-a-week treatments, but she would love to return to work (the ideal job would occupy her for the other four). If she could work again, she would teach funeral home-related skills at mortuary school.

But first, there is the case to fight at the Supreme Court. Stephens hopes the justices look at the history of favorable lower court rulings, uphold those rulings, and “once and for all say there are protections for LGBTQ people. I hope they recognize the protections are there, and that being transgender is not new. We’ve always been here. It is just now there’s enough of us to come forth, and that it’s open for discussion.

“We’re human beings. We deserve the same basic human rights as everyone else has. That’s all we’re asking for. We are not asking for anything special. We just want the basic human rights that we should already have anyway.”

“We are fighting for Donald, and for all LGBTQ people”

The last years of Donald Zarda’s life before his tragic death in 2014 were “pretty much” dominated” by the case, his sister Melissa, a graphic designer, told The Daily Beast. “We talked about the case non-stop. This was so important to him.”

Donald loved skydiving, Melissa said. “It was everything to him. Before the case it was all he talked about.” There were always videos and photographs to see, and Donald went back to school to get a degree in aviation-related management and administration. “Anything that involved being in the air was all he cared about.”

An “incredibly smart” young boy, Donald was always intrigued by airplanes and air travel. Both his mother and father had pilot licenses. As an adult he spent a lot of time skydiving with friends and others who shared his passion. Melissa is scared of heights, and “a huge regret” was that she never jumped with her brother. He was warm, generous, and loving as a brother, and loved sharing his professional passion with others.

Donald’s family was immediately supportive after he came out; “it was almost not an event,” said Melissa. He did so in his mid-20s. “I don’t think he was delaying telling us for any other reason than he was busy traveling the world and skydiving. He was not around that much.”

He died in 2014. “Just hearing you say it gave me goosebumps,” said Melissa. “Even years later the emotion tied up with it is still that intense. He kept our family together. We’re still tight, but he was such a force. It has been a devastating loss, unbelievably hard.”

Donald felt strongly that he was a victim of homophobia. “He absolutely was a fighter,” said Melissa. “He could not stand anything unfair. He felt he had been discriminated against, and was immediately prepared to fight. He knew it was wrong, and he was going after it. He wanted to stand up, in case it happened to anyone else.”

Fighting the case in her brother’s memory “is obviously a surreal thing,” said Melissa. “I can’t believe how far this has gone. It has totally taken me out of my comfort level. But it was a no-brainer. Of course, we wish he was here to see this and for us to fight this with him.”

Before the case, Melissa herself, “like so many people,” didn’t realize that LGBTQ were not protected against discrimination in the workplace. “I can’t bear that. I can’t bear the idea of anybody not feeling like the rights that are allowed to me are not allowed to them. It’s just not fair.”

Had Donald been alive, he would have been grateful for everyone’s support, and “then buckle down and fight as hard as he could knowing what was at stake. That would have made him fight harder.” It motivates Melissa too. “This has been so upsetting. We saw how badly it hurt him, and we hear from LGBTQ people about the discrimination they have suffered. We are fighting for Donald, and for all LGBTQ people.”

The Equality Act—and what happens after SCOTUS decides

A pro-equality decision from SCOTUS would be historic, said Tabacco Mar. “This is about the ability to earn a living, put a roof over our head and food in the refrigerator, rent an apartment, provide for ourselves and keep ourselves safe.”

A ruling in favor of the LGBTQ workers, Tabacco Mar said, would also send a powerful message about the unacceptability of anti-LGBTQ discrimination in many contexts; a decision against the workers “would send a deeply disturbing message about the membership of LGBTQ people in society, pose a barrier to inclusion, and place LGBTQ people at the higher risk of violence and discrimination.”

The cases are taking place alongside the frustrated progress of the Equality Act. Tabacco Mar said, “I don’t think there is anything less legitimate than getting a decision from the Supreme Court to say it’s illegal to fire anyone ‘cos they are LGBTQ. After all, marriage equality came from SCOTUS.

“However, we will need action from Congress to expressly state that it’s illegal to discriminate against someone because they are LGBTQ for two reasons. One is we want to be crystal clear, to the extent there is any ambiguity in the word ‘sex’ for employers, that there is no question in anyone’s minds.

“Secondly, federal law prohibits sex discrimination in some, not all, contexts. It prohibits discrimination in the workplace, schools, and healthcare. But it does not protect against discrimination in places of public accommodation, like bakeries. So there are contexts where federal law simply has a gap which Congress is going to have to fill.”

In the lower courts, President Trump has appointed a number of conservative judges, with anti-LGBTQ records and who would not be favorable to such claims, Anthony Kreis said.

If SCOTUS rules in favor of the LGBTQ people in these three cases, “will the lower court judges be as fair and impartial with such cases as we would like them to be?” he asked. Like the ACLU, for Kreis, a positive ruling would “communicate something very powerful and positive more generally about LGBTQ people.”

If SCOTUS doesn’t rule in favor of the LGBGTQ workers, then all eyes turn to the currently stymied progress of the Equality Act. Kreis said a negative decision could embolden those who would like to discriminate more against LGBTQ people.

Politically, Kreis thinks a SCOTUS ruling against the LGBTQ workers would not energize Trump supporters as much as forming an issue to energize progressive voters—suburban voters, and particularly educated suburban women in places like Maine, northern Georgia, and Denver, he said—to get behind Democrats standing for Senate, with an eye on getting the Equality Act finally passed if the Senate became Democrat-controlled.

For Kreis, “The Equality Act would be the surest way to effect non-discrimination as it would expressly protect people around sexual orientation and gender identity, and it would breathe a tremendous amount of life into civil rights in this country.

“That being said, it is also important for SCOTUS to show it understands the relationship between sexual orientation and transgender discrimination and sex discrimination. If the court rules in favor of LGBTQ people, it is important to codify that in statutory law, and because it sends an important message beyond expanding protections.

“It’s the belt and suspenders approach. You don’t need both the SCOTUS decision and the Equality Act, but there is no harm in having both. They’re achieving the same goal, twice, and that’s a fine thing to do.”