Will SCOTUS Write LGBTQ Bigotry Into Law?

On Tuesday, the Supreme Court heard oral arguments for three cases with the potential to roll back decades of progress on civil rights for the LGBTQ community. The cases in question, Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, could decide whether employees can legally be fired or discriminated against for their sexual orientation or gender identity. But they also have the potential to impact LGBTQ people’s access to basic public resources like health care, education, housing, and more.

With the addition of conservative, Trump-appointed Justices Neil Gorsuch and Brett Kavanaugh to the Supreme Court, LGBTQ advocates are concerned the court may side with employers in the aforementioned cases, and create a dangerous path forward for rampant, anti-LGBTQ discrimination. These cases may come down to whether the Justices view Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of sex, as inclusive of LGBTQ-based discrimination, due to the inextricable connection between sexual orientation and gender identity, and sex.

In R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, Aimee Stephens, a transgender woman, sued Harris Funeral Homes after she was fired for wearing a uniform for female employees. According to the lawsuit, her boss said he was “old-fashioned,” and believed that “a male should look like a … man and a woman should look like a woman.” When he fired Stephens after she had worked at the company for almost six years, Stephens said this was because she “departed from its owner’s sex stereotypes about how men and women should appear, behave, and identify.”

Through two hours of oral arguments, the usual liberal-leaning Justices (Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, and Elena Kagan) appeared to side with LGBTQ parties on the receiving end of discrimination. Ginsburg gave the first question to Pamela Karlan, a lawyer representing two gay men, about the “original public understanding” of sex discrimination when Title VII was first passed, and the role this understanding should play in deciding future cases. After Karlan pointed out that Title VII was originally regarded as unrelated to LGBTQ discrimination, Ginsburg reminded the court that Title VII was originally understood as unrelated to workplace sexual harassment, too. Later on, Justice Sotomayor went so far as to ask, “At what point does a court continue to allow invidious discrimination?” She added, “We can’t deny that homosexuals are being fired just for who they are.”

Gorsuch’s remarks have since drawn the most attention, as the conservative Justice seemed receptive to an interpretation of Title VII that is inclusive of gay and trans people’s experiences. However, despite his expressed sympathy for the LGBTQ plaintiffs’ cause, he also expressed concern about “the massive social upheaval that would be entailed” in a decision that recognizes Title VII includes sexual orientation and gender identity—or, in other words, recognizes that gay and trans people are human beings. Gorsuch statements imply he could be a potential swing vote in these cases, which are likely to come down to 5-4 rulings.

If the Court were to rule in favor of LGBTQ rights, which, unfortunately, does not seem to be an especially likely outcome, this could empower lower courts and federal agencies to recognize anti-LGBTQ discrimination. But a favorable ruling in the absence of comprehensive federal and state protections would hardly end LGBTQ-based discrimination, which remains rampant across the country.

With these cases on the docket, the fate of LGBTQ Americans’ ability to participate in the workforce is indisputably on the line—news that may come as a surprise to the 80 percent of Americans who think anti-LGBTQ discrimination is illegal in the U.S. Contrary to popular belief, the U.S. still lacks federal laws that explicitly protect LGBTQ people from employment discrimination. In 30 states, anti-LGBTQ discrimination remains legal, and 55 percent of LGBTQ-identifying Americans report having experienced discrimination.

Discrimination by employers and landlords has contributed to a wide range of alarming outcomes for LGBTQ people’s living standards. Trans people are twice as likely to be living in poverty as the general U.S. population, while trans people of color are about three times as likely to be living in poverty. According to a 2012 Gallup survey, more than 20 percent of LGBTQ people living alone had annual incomes of less than $12,000. The aforementioned Supreme Court cases have the potential to significantly worsen economic outcomes for queer people, as rulings in favor of the employers could make anti-LGBTQ employment discrimination and the poverty that extends from this even more prevalent.

But it’s not just employment discrimination. Because the Supreme Court will rule broadly on whether Title VII can be interpreted to protect LGBTQ people, the court’s decision could also impact the LGBTQ community’s access to key, life-saving public resources. Federal agencies and courts at every level reference the Supreme Court’s interpretations of Title VII. Based on the Supreme Court’s rulings in Altitude Express Inc., Bostock, and R.G. & G.R. Harris Funeral Homes Inc., federal agencies and courts across the country could potentially justify denying LGBTQ people housing, health care, and education.

The Supreme Court has previously used Title VII to rule that employers cannot discriminate against employees based on sex stereotypes in Price Waterhouse v. Hopkins (1989). Since that ruling, lower courts have found that workplace discrimination against LGBTQ people is essentially equivalent to discrimination based on sex stereotypes. As Chase Strangio, an attorney with the ACLU who will be arguing in the Harris Funeral Homes case, told Vox, “A trans person by definition does not meet expectations of how a man or woman should be—that is, to have been assigned a particular sex at birth.”

As we await the Supreme Court’s decisions on these cases—likely by this summer—there are ways we can all fight back against anti-LGBTQ discrimination—from contributing what you can to groups like the ACLU that litigate key cases for LGBTQ rights, to keeping an eye on the Twitter #TransCrowdFund hashtag and sharing or donating to the GoFundMe pages of those in need, to being selective consumers and boycotting companies that have been outed for discriminatory behaviors. In addition to crowdfunding money and resources to LGBTQ folks in need, it’s critical that we also crowdfund information about civil rights and options for recourse for those on the receiving end of discrimination, to as many people as we can.