‘Sex’ at the Supreme Court

S.T.A.R., 2012, a painting of trans-justice activists by Tuesday Smillie
Tuesday Smillie
Tuesday Smillie: S.T.A.R., 2012. STAR was a trans-justice organization founded in 1970
in New York after the Stonewall riots. Cofounder Sylvia Rivera (center),
Bebe Scarpinato (right), and other activists advocated for legal protections for trans,
gender nonconforming, and gay people, and developed mutual aid networks
to provide food and shelter.

Aimee Stephens was a successful funeral director for R.G. and G.R. Harris Funeral Homes in Michigan for nearly six years, appearing as a man and using the name she was given at birth, until she informed her employer in 2013 that she was transgender and would begin living as a woman. He promptly fired her, explaining that he believes “a male should look like a…man, and a woman should look like a woman.” Donald Zarda taught skydiving for fifteen years but was fired by Altitude Express on Long Island in 2010 when a female customer complained that he had told her he was gay to make her feel less anxious about being strapped together with him during a tandem skydive. Gerald Bostock lost his job as an advocate for children in a Georgia juvenile court in 2013 when his employers learned that he was playing in a gay softball league. All three filed suit alleging that their employers had discriminated against them.

Being transgender or gay has nothing whatever to do with one’s ability to direct funerals, teach skydiving, or advocate for kids. It is just as unfair to lose one’s job because of one’s sexual orientation or gender identity as it is to lose it because of one’s race or religion. Employment decisions should be made on merit, not group-based characteristics.

But is firing someone for being gay or transgender illegal under Title VII of the Civil Rights Act of 1964, which bars employers from discriminating “because of…race, color, religion, sex, or national origin”? The Supreme Court will take up that question in October, when it hears arguments in the cases of Stephens, Zarda, and Bostock. (The ACLU, where I am national legal director, represents both Stephens and Zarda; I will be arguing Stephens’s case before the Court. Zarda died in a BASE jumping accident in 2014; his partner and sister have pursued his case.) At issue is whether lesbian, gay, bisexual, and transgender people have a right to be treated equally in the workplace, since discriminating against them is inextricably “because of sex.”

The question has divided lower courts, often along unpredictable lines. Some judges, including some relatively liberal ones, have agreed with the employers in these cases that firing someone because she is transgender or gay is categorically different from firing someone because she is a woman, and therefore is not covered by Title VII’s ban on discrimination “because of sex.” They contend that when Congress in 1964 forbade sex discrimination in employment,…


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