Thirty years ago, the Supreme Court ruled that discrimination based on gender stereotypes violates Title VII of the 1964 Civil Rights Act. In a 6-3 decision, the Court ruled in favor of Ann Hopkins, an employee at Price Waterhouse who, despite helping the company nab the largest contract in its history, had been denied a promotion. Hopkins sued the company for sex discrimination. She had been told by men at the company, she recalled, to “walk more femininely, talk more femininely, dress more femininely, wear makeup and jewelry. Have your hair styled.” She was too “masculine,” according to her coworkers and bosses, in both her appearance and her demeanor. Seven years after she filed her initial lawsuit, the justices largely agreed with Hopkins that her bosses had judged her using stereotypical ideas of how a woman should look and act. In his decision, Justice William Brennan wrote, “We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”
The landmark decision in Hopkins’s case has had wide-ranging impacts, especially for LGBTQ workers, who continue to be excluded from most states’ anti-discrimination laws. In recent years, as Emily Bazelon wrote in the New York Times Magazine in 2018, “courts have since extended the protection Ann Hopkins won to transgender people and to men who have trouble at work because they appear to be feminine.”
But on Tuesday, the Supreme Court will hear oral arguments in three cases that will determine whether LGBTQ workers—and by extension all workers—have federal protections against sex-based discrimination in the workplace. One of the cases is the first to specifically address the civil rights of trans people, and involves Aimee Stephens, a trans woman who was fired by her employer after she told him she was trans; the other two cases were brought by gay men, Gerald Bostock and the late Donald Zarda, who charged they were fired from their jobs because of their sexual orientation.
As the ACLU’s Chase Strangio put it to the New Republic, “These are the single most important set of explicitly LGBT cases to ever reach the Supreme Court.” In the case of Stephens, Strangio wrote in the Washington Post that Tuesday’s oral arguments may mark “the first time the word ‘transgender’ is spoken during oral arguments in the highest court in the United States.”
“These are crucially important cases for LGBTQ workers, women workers, and frankly all workers,” Sunu Chandy, the legal director at the National Women’s Law Center, told Jezebel. “Employers, whether they’re hiring, firing, promoting people—that’s supposed to happen without sex discrimination. And the question right now is, do LGBTQ workers get those protections too, or not?”
Chandy added that the ramifications of these three cases go beyond workplace discrimination protections for LGBT workers. A loss would, she said, open the door for employers to again have free reign to discriminate against employees based on their ideas of how men and women should behave. “We fully expect that if this case is ruled against the workers, that many, many women will be at risk for further sex discrimination.” For LGBTQ workers, she added: “That would be a free pass for employers in half the country to discriminate.”
The stakes of the case are especially high for trans workers like Aimee Stephens. Tuesday is “an incredibly important day for LGBT people across the country,” Andy Marra, the executive director of the Transgender Legal Defense and Education Fund, told Jezebel. This is particularly true for trans people, who experience extremely high rates of discrimination at work. “The reality is that it’s all too common in this country, and Aimee is one of countless trans people who have faced discrimination on the job,” Marra said. “Trans people continue to be at risk.” The 2015 U.S. Transgender Survey, conducted by the Center for Transgender Equality, found that 30 percent of trans people have reported being fired, denied a promotion, or facing some kind of mistreatment in the workplace because of their gender. The rates for trans people of color, she noted, are even higher.
Stephens, who for years was a funeral director at R.G. and G.R. Harris Funeral Homes in Michigan, was fired in 2013 after she wrote to her employer Thomas Rost that she was trans. “I will return to work as my true self, Aimee Australia Stephens, in appropriate business attire,” she wrote. “I hope we can continue my work at R. G. and G. R. Harris Funeral Homes doing what I always have, which is my best!” Rost, who is being represented by the Christian, anti-LGBTQ group the Alliance Defending Freedom, has freely acknowledged that he fired her because she is trans. When asked, Rost explained, (while repeatedly misgendering Stephens): “Well, because he was no longer going to represent himself as a man. He wanted to dress as a woman.”
It’s clear that Rost and the ADF are attacking trans rights in particular, and using the standard rightwing, TERF talking points to do so. In its brief, the ADF claimed that “redefining sex discrimination will cause problems in employment law, reduce bodily-privacy protections for everyone, and erode equal opportunities for women and girls, among many other consequences.” Tellingly, a who’s who of anti-trans bigots have signed on in support of Rost, from the Heritage Foundation’s Ryan T. Anderson to the Women’s Liberation Front, or WoLF, all of whom are attempting to make the same argument: that trans women are not women and that giving trans women civil rights protections would harm other women. (For the members of WoLF, the fact that a ruling against Stephens would possibly reify gender stereotypes in the workplace apparently matters less than ensuring trans women have fewer rights.)
Rost and his attorneys at the ADF have claimed that Stephens has no basis to file a sex discrimination claim because Rost “would have responded to a female employee who insisted on dressing as a man while working with grieving families the same way it responded to Stephens.” The Sixth Circuit Court of Appeals dismissed that argument when it decided in Stephens’s favor, finding that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”
Despite the conservative majority on the court, Marra and Chandy are are cautiously optimistic the Supreme Court will rule in Stephens’ favor, pointing to decades of case law and precedent. “This case falls under a pretty straightforward case of sex discrimination because of her gender identity,” Marra said.
But concern is warranted. The Trump administration, after all, has been steadily rolling back rights for LGBTQ people, and in particular, trans people. And in a brief, the Department of Justice has weighed in against Stephens. “It’s really telling that the U.S. government, through the [Equal Employment Opportunity Commission], brought the Aimee Stephens case, and since that moment that they brought that case, the law has become stronger, the statute hasn’t changed, the precedents haven’t changed,” Chandy noted. “Yet the U.S. government is now coming down on the side of the employers.”
For Chandy, the worry is that the Supreme Court will “find some principled way to protect Ann Hopkins as a straight woman but [not] LGBTQ people.” But, she said, “There is not a principled way to draw this line to exclude LGBTQ workers.”
“This case will determine the next phase of our movement’s legal advocacy,” Marra said. “We’re prepared to fight. We’re ready to move in any direction.” As Stephens herself put it recently, “Regardless of whether it’s a favorable decision or not, we still have a lot of work to do. When this part’s over, we just work on the next issue, and work hard and keeping going.”