Sex discrimination law was originally written to protect female workers from being denied the same opportunities as men, and the law evaluates the way two separate employees are treated based on their gender. But when it comes to trans workers, discrimination is more rooted in stereotypes about the way a person’s gender should appear. “Aimee Stephens was a valued employee at a funeral home when her boss thought she was a man,” says Branstetter. “When she made clear she was a woman — and would dress like a woman — she was fired because she refused to dress and behave how her boss thought she should because of her sex. That’s sex stereotyping.”
Unfortunately, the Trump administration is fighting to convince the court that sex discrimination should have a limited interpretation. In a brief filed in support of the employers who fired two gay men, United States Solicitor General Noel Francisco says “The ordinary meaning of ‘sex’ is biologically male or female. It does not include sexual orientation.” The Trump administration brief goes on to argue that treating a gay man differently from a straight man is not sex discrimination, essentially, because there are no women involved. The administration’s stance is that sex discrimination only applies to treating male and female workers differently from each other.
Who are the LGBTQ+ workers being represented?
Aimee Stephens spent six years working as a funeral director for a Michigan funeral home, after studying to be a pastor led her to realize “comforting people during one of the most vulnerable points in their lives was my ministry,” as she wrote in a 2018 blog post for the ACLU. When Stephens identified as and presented as a man, her employer gave her regular raises and great performance reviews. But after Stephens slowly came out as transgender, first to her wife and therapist, she decided that she had to come out to her employer and coworkers as well. A couple of weeks after handing her boss a letter that explained her gender transition, Stephens was fired.
“Like many trans people, Aimee spent much of her life denying who she was and trying to please those around her,” says Chase Strangio, one of the ACLU attorneys representing Stephens. “It took so much bravery and fortitude to come to terms with her truth and then share that with her employer of six years. To simply name your truth and then face immediate discharge from work is heartbreaking and scary.” Stephens’ boss was fine with her being a man, but was not okay with her becoming a woman and holding the same job — which meets the core definition of sex discrimination.
Donald Zarda was a skydiving instructor who casually mentioned to a female student that he was gay, his sister wrote in a July essay for TIME, because he wanted to make her more comfortable with the close physical contact required during a jump. After they came back to ground, Zarda was fired. He sued his employer for sex discrimination, but tragically died in 2014 during a dangerous BASE jump. His case has moved through lower courts for a decade, and though he won’t be able to witness the outcome, finally made it to the Supreme Court this year.
Gerald Bostock managed a Georgia program that appointed court advocates for abused and neglected kids, and told the Daily Beast last week that it was his “dream job.” But in 2013, he says, colleagues discovered that he played for a gay softball league. Bostock says he was taunted with homophobic slurs and then fired, telling the Daily Beast the experience “has been extremely emotional. I lost my livelihood, and my source of income. I even lost my medical insurance, and at a time I was just recovering from prostate cancer.”
What happens if the court rules for the LGBTQ+ employees?
In a best-case scenario for LGBTQ+ advocates, the Supreme Court will rule that the federal ban on sex discrimination also means employers can’t discriminate because of sexual orientation or gender identity. Because it’s a federal law, it will automatically mean that queer and trans people across America are protected from job market bias regardless of state laws. According to Nevins, it might also lead to other federal policies being interpreted the same way — basically proving for once and for all that anti-LGBTQ+ discrimination is sex discrimination.
