WASHINGTON (TPF) – On Tuesday, the Supreme Court heard oral arguments in three cases concerning LGBTQ rights. These cases could forever damage constitutional protections for not only LGBTQ workers in the United States but also the rights of all employees in America.
The cases, Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, are about whether workers can constitutionally be terminated due solely due to their sexual orientation or gender identity.
The Harris Funeral Homes case covers Aimee Stephens, who was dismissed from her job because, she contends, her boss disapproved of the reality that she is transgender.
Zarda is being represented at the Court by his widower, husband Richard Moore, after Zarda died in a skydiving accident in the Swiss Alps. Zarda’s widower claims that his husband’s former employer discriminated against his late husband when he was ousted because of his sexual orientation.
Bostock is a gay man from the state of Georgia who claims he was ousted due to his sexual orientation by the Clayton County, GA government.
A decision against Stephens, Zarda, and Bostock could change not only employment, but also housing, health care, and education, and even exacerbate the epidemic of violence against trans women of color. America is absent of any federal law that protects people from discrimination based on their sexual orientation or gender identity, as Ian Millhiser of Vox explains. Also, only 22 states have protections mentioned above for sexual orientation and 21 for gender identity. The day’s arguments were directed at the issue of whether it should be constitutional to discriminate against LGBTQ people in terms of employment, housing and public accommodations, on a federal level. The high court is determining whether to extend such policies to the 28 states that don’t have any such legislation in their respective states.
Historically, LGBTQ workers have been empowered to seek legal redress under Title VII of the Civil Rights Act of 1964, which forbids discrimination based on sex. In distinct, they’ve been able to refer to the Supreme Court case of Waterhouse v Hopkins (1989), which determined that employers cannot discriminate against employees based on sexual stereotyping.
Over the years, many lower courts have ruled that discrimination against LGBTQ workers is essentially discrimination based on sexual stereotyping. The Justice Department of President Trump calls on the Supreme Court to find that employers can discriminate based on sexual stereotypes as long as they do this for both men and women. Harris Funeral Homes are making a similar pleading itself. In summary, the employer states that “he would have responded to a female employee who insisted on dressing as a man while working with grieving families the same way he responded to Stephens.” In essence, Harris Funeral Homes want to have the right to fire someone if the way that person dresses does not adhere to gender roles defined by Harris Funeral Homes.
If the Court decides in their favor, the consequences for LGBTQ rights are enormous. And the decision could have effects far beyond the workplace, experts say. Federal courts and agencies will examine how Title VII is interpreted in the interpretation of Title IX, which, for example, oversees gender discrimination in education.
This means that LGBTQ people could lose not just their jobs as a consequence of the three cases at issue Tuesday, but also conceivably their housing and also access to medical care and education. Such destruction could have a net effect on LGBTQ people’s lives, as they are driven homeless by lack of employment and discrimination on the basis of housing, which in turn would leave them vulnerable to violence.
The cases may forever change sexual discrimination law
For these and other reasons, many medical and legal groups have filed amicus briefs to assist Stephens and the other employees in the cases. But some groups claiming to be feminist are siding with the employers. A group called the Women’s Liberation Front (WoLF) filed an amicus brief in Harris Funeral Homes on behalf of Stephens’s employer, arguing that “Stephens is a man” who “wanted to wear a skirt while at work.” The defenders on behalf of Stephens and the other employees in the cases before the Court say that actually, women and girls – and indeed Americans of all genders and sexual orientations — will lose protections if the employers get their way.
If the Court determines that discrimination based on sexual stereotyping is legal, anyone who does not respect an employer’s opinion about femininity or masculinity could be at risk, the defenders say. This would essentially affect all Americans, regardless of their sexual orientation or gender identity. It is difficult to imagine a group in society unaffected by such change.
Obviously, the Court could endeavor to declare a more confined ruling than the one the Trump administration is seeking, claiming that Title VII protects heterosexual and cisgender Americans, but not LGBTQ persons. However, defenders of LGBTQ rights and gender equality in the workplace claim that there is no practical way to do this for a constitutional reason.