On Oct. 8, the Supreme Court heard arguments in three cases in which the Trump administration is urging the court to rule that it's legal to fire workers for being LGBTQ, or to discriminate in health care settings against LGBTQ people.
So, for the LGBTQ movement, this, of course, is a big moment. These cases will affect a broad range of contexts in which LGBTQ people may face harm, if the court green-lights discrimination. Worse still, an adverse ruling would strip away protections against discrimination that LGBTQ people have been able to use to protect themselves for two decades. And all this in a context in which nearly one in three transgender people have experienced discrimination in the workplace -- and many more are unable to find stable employment. In short, the stakes are very high. I spoke with Chase Strangio, deputy director for transgender justice at the American Civil Liberties Union (ACLU), about the stakes of this case, and what the ACLU is doing to fight back.
Terri Wilder: So, you have been working very closely with these cases. Can you talk a little bit about the three cases and what's at stake here?
Chase Strangio: These are three cases involving employees who were fired, either because of their sexual orientation or because of being transgender. And a question that was teed up before the United States Supreme Court was whether it is lawful under Title VII of the Civil Rights Act, which prohibits discrimination because of sex, to fire someone just because the person is LGBTQ. Though there's no federal law that explicitly prohibits discrimination based on sexual orientation or transgender status in employment, LGBTQ people have been protected from discrimination in federal law under Title VII's prohibition on discrimination because of sex.
The lower courts, particularly with respect to transgender employees, have recognized for many, many years that when you fire someone or otherwise discriminate against them because they're transgender that is because of sex, under the plain language of the statute; and, of course, precedents interpreting the statute that also make it unlawful to discriminate based on sex stereotypes.
And then, increasingly, in the sexual orientation space, courts have also held that it is unlawful sex discrimination to discriminate against someone just because of the sex of the person that they're attracted to, or because they depart from sex stereotypes about, you know, sort of how should men be. And the presumption is that all men should be exclusively attracted to women (which is a stereotype); and the presumption about women, that they should be exclusively attracted to men (which is a stereotype).
The courts have really held this is sex discrimination. And that's been critical for getting protections for LGBTQ people. And now employers in these cases and the Trump administration are urging the court to narrow Title VII and rule that it is lawful to fire someone just because they are LGBTQ.
TW: On Oct. 8, you were inside, and a bunch of people were outside. I actually was one of the people at the outside part of the rally. And there was two hours of lively arguments inside about what you're just talking about, about the Civil Rights Act and, in particular, Title VII.
But some of the things that happened inside were kind of a little shocking. [The discussion went] all the way down to the bathroom -- which seemed to be getting a little off point. And it sounds like maybe the lawyers had to get people back on point. What was it about these cases that made people kind of go off on these different tangents?
CS: Yeah. Just so folks are aware, none of the cases involved restroom use in any way. You know, with two cases involving gay men who were fired because of their sexual orientation, and one case involving a transgender woman who was fired when she disclosed to her employer that she's transgender -- you know, she didn't even have time to go to the bathroom; she was fired immediately. So, the issues were not in any way directly contending with what happens when anyone uses the bathroom, transgender or otherwise.
I have to say that a lot of the commentary has been about, "Oh, you know, the justices were fixated on the bathrooms, and this was very surprising."
From my perspective, it wasn't surprising at all, both because of the sort of political moment we're in; but the reality of being a trans person and litigating trans cases is that there really is no way for people, it seems, to talk about transness without talking about restrooms. It's like, you know, you say transgender and people just think restroom. And so I think we had to be prepared for that; and we were -- in part, because also, Supreme Court arguments in particular but all court arguments often go down this sort of parade of horribles, or sort of, what are the subsequent line of cases.
So, the justices, particularly the ones we knew to be hostile, were inevitably going to come up with a, "Well, if we rule for you here, what about X scenario?"
And so, in that sense, it was just a way to sort of contend with -- which was very much the other side's goal -- with people's general confusion about, and discomfort with, trans people and our bodies. And to say, "Well, maybe it's unlawful under the plain text of the statute to fire you, because that is because of sex. But if trans people are wholly protected, then they'll also get to go to the bathroom."
And we're like, "Well, sure. Yes. That is part of life and it is in no way disruptive to the workplace or anything else. It's also not before the court."
But I think it was very much a strategy of the employer, in Aimee Stephens' case, in particular -- but also in the sexual orientation cases -- to sort of raise the specter of restrooms and then locker rooms, and then swimming contexts, and sports, in order to draw forth people's, just, inherent discomfort with trans people.
And so, on our side, obviously, the response is: Well, 1) this isn't that case. You can cross that bridge when it comes before you; focus on the question on hand. And 2) trans people exist no matter what, and are -- and have been forever -- going to the bathroom, and following your dress codes, and playing on sports teams. And, in fact, you just haven't noticed.
I also think, in general, oral argument is a hard place to actually glean what an ultimate decision will rest upon; just because it consumes a huge part of argument doesn't necessarily mean that it consumes a huge part of any ultimate decision, because what the justices could be playing out with each other is just a general desire to understand the limits of any legal rule that they would ultimately adopt, and what it means for the next case. And so, I think that was a lot of what was going on.
TW: Let's talk about the cases, just for our readers who may not be familiar. I saw on one of your tweets earlier in the cases coming forward that you were kind of shocked that there was not more conversation about it. And, quite frankly, I was, too. So, let's start with Aimee Stephens and talk a little bit about what happened to her in her workplace.
CS: Aimee worked at a funeral home in Michigan. She had worked there for six years, and was a valued employee. And she, like many transgender people, was sort of struggling internally with the truth of who she is and sort of knew she was trans, and knew that there was something going on for her. So, she went and sought out support from a therapist, and then other clinicians and ultimately reached a point, after talking with her wife, that she could no longer hide that she is a woman, that she's trans. And so, she started to come out to people around her -- first her family and then, of course, her employer.
She wrote this beautiful heartfelt letter to her employer, basically saying, "You know, this is who I am. I'm still the same person and I will always do my best. And I'm going to come to work as Aimee Stephens."
And then she got fired.
At the time -- this happens in 2013 -- President Obama is president. The Equal Employment Opportunity Commission is still enforcing civil rights law, consistent with the way the courts have largely interpreted it. And so, ultimately, her lawsuit is filed actually by the federal government against her employer. So, it's the EEOC v. R.G. and G.R. Harris Funeral Homes. That's the case. The EEOC sued on her behalf. That's how the case made its way through the courts.
After the election, the presidential election -- well, the election in 2016 -- in 2017, we intervened in the lawsuit on Aimee's behalf, because we were concerned that the government would no longer defend her interests. Of course, we were right. And they did switch sides at the Supreme Court.
So, the United States ended up siding with the employer, even though they had originally brought the lawsuit against the employer. So, that's Aimee's case.
TW: And then Gerald Bostock, whose case started in Georgia, which is my home state; if you could talk a little bit about that case, as well.
CS: There are two cases. There's Bostock from Georgia, and then Zarda, from New York. In Bostock, Gerald Bostock worked for the county. He was also a valued employee. And then, when his sexual orientation became known at work because he had joined a gay softball league, he was fired. And then he filed a lawsuit challenging his termination under Title VII of the Civil Rights Act, arguing that was impermissible sex discrimination.
And then, in Don Zarda's case, which was out of New York, he was a skydiving instructor. And in the context of being strapped to a woman during a dive, he said, "You don't have to worry about our closeness; I'm gay." And then he was fired.
And so, these are just straight firing cases. This isn't like, "Oh, these folks were bad at their jobs." It was really just the employees are LGBTQ and the employers are saying, "It's not unlawful under federal law to fire you because of that." And so, that's sort of the question that goes up all the way to the Supreme Court.
TW: I guess I'm a little confused about the Zarda case, because I thought in New York State there were protections for LGBTQ employees.
CS: There are. And there are some complicated procedural things. There are explicit sexual orientation protections in New York State, and for reasons related to evidence and other things, Don Zarda's claim wasn't able to move forward under state law. But he still had a claim under federal law. So that is sort of a convoluted background. And he ultimately filed a Title VII claim. That's the claim that's still alive.
And so, separate and apart from his state law claims, which -- there's no question that he would have been covered under state law -- the remaining question is: Does Title VII protect him as a gay worker from being fired because he is gay?
TW: Right. And, unfortunately, Don Zarda died.
CS: He did. So, it's his estate. Yeah.
TW: These cases are obviously so important and could have a long impact on the employment rights of LGBTQ people for a very, very, very long time if it goes in favor of the employer. What are the implications if the Supreme Court sides with the employer?
CS: Yes. I think this obviously is a huge case because, you know, when a case goes up to the Supreme Court, they create precedent that can last for generations. And they'll be interpreting federal laws, prohibition of discrimination because of sex under Title VII. But then it will also have an impact on other contexts where sex discrimination is prohibited, including education, Title IX, health care under the Affordable Care Act, and credit, and housing under the Fair Housing Act. And so, this really does have the potential to implicate a whole host of contexts under federal law.
And then, of course, there's the symbolic effect of a pronouncement about LGBTQ people and, particularly, trans people who haven't been before the court in sort of an explicitly trans case before, though there have been trans plaintiffs in other cases before the court.
So, I think there's a number of ways it will impact people. Obviously, the symbolic impact and whether people feel emboldened to continue to be discriminatory, on just a rhetorical or symbolic level. And then if they actually go so far as to legalize discrimination, that will, of course, legalize discrimination under federal law.
State laws will still exist, and so, in places where there are state protections, those won't go away. But in the many states that don't have those protections, people will lose access to legal redress when they face discrimination because of who they are.
I guess, I would say, even if we win, we live in a country that does not have particularly strong employment protections of a general matter. You still have a very difficult time of showing discrimination. And so we, no matter what, have a long way to go, even if we're successful in the court, to ensure that our protections are actually enforced, to make sure that people are actually supported. So, there's that reality.
I want people to realize that we're going to have to keep fighting, no matter what. But obviously, a loss would really put people in a much more precarious position. It would open the door to more discrimination. It would send a horrible message to people around the country, and put us outside the law in fundamental ways.
Now, we are talking about an interpretation of law passed by Congress. And so, you know, unlike a Constitutional case, where the court ultimately has the final say, Congress has the final say here. So, if they rule against us, I think it will be critical for us to mobilize and push Congress to act.
Now, this is not exclusively the domain of Congress. The court's job is to interpret the law. And hopefully they won't shirk that responsibility, and they will apply the plain text in a way that, I believe, is very straightforward. I think they would have to go out of their way to rule against us, in many ways.
But if they do, then it's on us to push Congress to fix it. So, you know, in the past they have, the court, the Supreme Court, has issued that sex discrimination decision -- specifically, in the context of pregnancy discrimination. And Congress did fix it by passing the Pregnancy Discrimination Act. And so, we will then have to say, "The court got it wrong. Congress, fix it." And we will push to do that -- which, obviously, will depend on getting the Senate to change and getting a new president. The House has already passed the Equality Act, which would make clear that LGBTQ people are covered under federal civil rights laws -- as well as expanding civil rights law to protect people in more contexts, everyone who's already covered -- and then adding sex to Title II, which prohibits discrimination in public accommodations (which doesn't currently include sex).
I think the other sort of scary thing here is that the employers and the government and the Trump administration took some pretty extreme positions with respect to sex discrimination law, generally, and were pushing the court, not just to rule against LGBTQ workers; but really to roll back the canon of civil rights protections, because of sex, as a general matter.
One of the bedrocks of sex discrimination law is that it is impermissible to enforce sex stereotypes in the workplace. And because discrimination against LGBTQ people is so rooted in sex stereotypes, and it's somewhat impossible to, in any intellectually honest way, draw that line; their attempt before the court was to say, "Well, sex stereotypes in the workplace are fine, as long as you enforce them against both men and women." And so that idea is, well, you can fire a woman for being insufficiently feminine, as long as you fire a man for being insufficiently masculine -- which is a total about-face of what we've relied on in the context of sex protections for a very long time.
So, I think another consequence of this is that they sort of limit the doctrine in such a significant way that it really does affect many, many more people than just LGBTQ people. It affects all workers. And so, I would really hope that the heterosexual, cisgender people are also up in arms about the prospect here. Because an adverse ruling could very well have negative consequences for a lot of people. And then, hopefully, we'll all be mobilized to go to Congress and get them to fix it.
TW: If these cases end up siding with the employer, this has long-impacting consequences for folks who go to work, and need their health care through their employer. Can you just kind of speculate what this could do, particularly to LGBTQ people and then, more specifically, to people who have HIV?
CS: Yeah. I think one of the great injustices of the American model of health care, of course, is that so many people are without it and rely on employer-based health care in order to meet their health care needs. And so a loss of any protections in the workplace obviously implicates people's ability to survive -- not just because people need their income to survive and support themselves and their families, but also, you know, often that is how people get health insurance, which then enables them to take care of their health needs, even if it is not always possible to do so, even when you have health insurance.
And so, the risk here is that a loss will cut people off from basic survival needs, including health care access, which will have a huge impact on people -- people living with HIV who rely on insurance, people who rely on insurance for access to PrEP, people who rely on insurance for all sorts of attendant health needs. That is a direct consequence of making employment more precarious. So, yeah. I think that's just sort of critical to think about.
And then obviously, if someone is fired directly because they are living with HIV, that would still trigger a claim under the ADA, as well as state laws, with ADA being the Americans with Disabilities Act. So, it wouldn't necessarily take away claims for discrimination based on a person's actual or perceived HIV status. But it would obviously imperil people who are discriminated against because of their sexual orientation, and they're living with HIV, and therefore lose access to the very nature of the material goods that the employment provides, that allows people to manage their health.
And so, I think that, especially within the LGBTQ community, folks who are trans and folks who are living with HIV, and folks with other chronic health needs -- obviously, there's an added layer of anxiety that comes with this, both because it could affect health care access under the Affordable Care Act by directly importing any interpretation of sex discrimination into that context; but then also making that person's relationship with their employer more precarious, and then making it more likely that people will lose employment, lose housing, and then be more precariously situated when it comes to their health.
And so, that is a definite area of concern. And I would add, too, now, we're already living in a time when so many people are under attack, particularly black and brown people in the LGBTQ community, particularly black trans women, many of whom are living with HIV. We know that the communities most impacted by HIV continue to be in black communities, both gay and bisexual men and transgender women, as well as, I think, immigrant trans women, in particular. And this will have an impact on people's ability to continue to sort of fight both the government's systemic violence, but also individually perpetrated violence. That is something that, no matter what happens, we're going to continue to fight for those who are at the intersections of so much discrimination, and go from there.
I would say that it is not lost on me that, at the end of the day, our laws and our courts fail to see us as full human beings, even when we prevail. So, it's incumbent upon us as advocates, and as people who have access to visibility and power within the public conversation, to continue to push the entire country to be more responsive to the nature of people's precarious lives. And we have a lot of work to do.
TW: My understanding is that the decisions won't come in till next year. Is that correct?
CS: You know, it's one of these things where the Supreme Court can do what they want to do. And that's one of the frustrating things. So, the common [process] with them is that the big cases are not decided until the end of the term.
The term ends in June of 2020, which means that the most likely time frame is June 2020. But they're not restricted to that, so a decision could be issued any time between now and June. But it will be issued -- it could go till the end of June.
TW: If folks want to continue to track what's happening, advocate for folks, any suggestions on how to keep up with the cases, how to stay involved?
CS: In terms of following the case, the ACLU has counsel in two of the big cases. We will always have updates on our Twitter, @ACLU; on our website at ACLU.org; and then, for Supreme Court news, generally SCOTUSblog is a great place to follow along. And they usually will update with decisions, both on their website and on their social media. I think that's another place to just try to keep track of what is happening. And we will continue to put more information out, put more content out that people could share.
The other thing is, unfortunately, this term at the Supreme Court is going to be a big term for big cases, including on Nov. 12, the court will be hearing the DACA cases about deferred action for DACA recipients. And that, you know, will have a huge impact on many people in our community, as well. The court also took a big abortion case out of Louisiana. That will be heard later in the term. They are still granting cases for this term. So, there are a lot of civil rights, civil liberties, issues that are still going to be before the court that will impact our communities.
And so, both the ACLU and other groups that are litigating before the court, as well as SCOTUSblog, can update, not just about the Title VII cases, but the many cases that will impact people's lives.
TW: Is there any advantage to writing the Supreme Court justices and sharing stories in how this would impact people's lives?
CS: You know, it's not so much about writing directly to the justices. I think that the way to get to the justices is to get to the country. And so that really is about just writing letters to the editor, talking about the importance of the cases; making it clear that when they're thinking about what to do in these cases that they look out on a country that makes clear that this is important to them.
They're not elected. It's not like writing to a member of Congress. But what does make a difference is, of course, writing to your member of Congress; but also writing to your local paper; writing on your social media; talking to people. Because that does create atmospheric change. And that is really how the court changes.
As just one example, in the context of marriage equality, that work: The legal arguments didn't change at all over many, many, many years. But the outcomes of the cases changed only because the public discourse changed. You went in a period of five years from losing all the cases to winning all the cases. And nothing about the law changed.
So, what did change was people's understanding of LGBT people. And so, that's really a critical way that we make change in the courts. And that's, I think, where people can really put pressure on the justices, on Congress, on lower court judges now. It's just to show that this is a critical issue, LGBTQ people aren't going away, and that these issues are really important to all of us.