The U.S. Supreme Court will soon determine whether federal employment law prohibits discrimination on the basis of sexual orientation and gender identity. The court agreed to hear three cases involving Title VII of the 1964 Civil Rights Act, which currently prevents employers from discriminating based on “sex.” This decision will have a monumental impact on LGBTQ communities – and particularly trans workers – who already face significant challenges from discriminatory employment practices.
Supreme Court justices will be required to evaluate the intentions of the law by reviewing three individual cases that all relate to the existing federal bans on sex discrimination in the workplace. This decision will carry enormous political repercussions for LGBTQ people, who are not explicitly protected from discrimination in the workplace, housing or public accommodations under current federal and most states’ laws.
The judicial reexamination of Title VII stems from a 2010 case: Altitude Express Inc. v. Zarda. Don Zarda, a skydiving instructor, was allegedly fired for revealing that he was gay to a customer. After his termination, Zarda filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), arguing that both the customer and his employer were homophobic. After Zarda passed away during a base jumping accident in 2014, his estate continued the lawsuit, managed by his sister Melissa Zarda and his former partner Bill Moore.
The second significant case under judicial review pertains to a former child welfare services coordinator who claimed that he was fired due to a homophobic work environment. Throughout the ten-year period that Gerald Bostock worked out of Clayton County, Georgia, he received positive performance evaluations and numerous accolades. It wasn’t until Bostock joined a gay recreational softball league in 2013 that he began to experience harassment at work, and was later let go.
Both Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia are being consolidated for oral arguments. If the final ruling reverses the established legal protections, the employment of millions of LGBTQ people would be at risk. Trans employees would bear the brunt of this ramifications for this decision, given the overwhelming employment discrimination they already face.
In addition to those two cases, the court is also examining a case out of Michigan. Aimee Stephens was fired from a Detroit funeral home after she started presenting as a woman. R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission stated that Stephens was employed for six years and excelled in her performance evaluations—but it was only after she came out as a trans woman that she was terminated from her job.
Reports from as recently as 2017 indicate that the transgender unemployment rate is three times higher than the national average. Combined with the Supreme Court’s decision to ban transgender Americans from openly serving in the military, LGBTQ communities will continue to face an uphill battle under the Trump administration. A judicial ruling at the federal level in favor of employers would mark a significant step backward in the steady progress made for LGBTQ rights.
Allies and advocates have urged the Supreme Court to carefully consider the repercussions of their final ruling. The legal director at the National Center for Lesbian Rights, Shannon Minter, said that the wrong ruling could be catastrophic for communities and disruptive for businesses, who would face a patchwork of conflicting state laws. “It is time to add these protections to our nation’s laws,” says Minter, “to ensure that no person is denied employment, housing or access to public accommodations simply because of who they are.”
The Supreme Court is currently comprised of nine justices, a majority of whom lean politically to the right on social issues. One key factor in the final ruling in these cases is that Justice Anthony Kennedy was recently replaced by Brett M. Kavanaugh. Although Kennedy was appointed under a Republican administration, he held a positive judicial track record on gay rights up until his retirement. Kavanaugh has yet to establish a stance on any LGBTQ-related cases but is predicted to vote in alignment with his party’s values.
In the coming months the Supreme Court will further examine the parameters of the wording in Title VII, and determine whether it will include protections for LGBTQ employees.
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