The US Supreme Court opens its new term on Tuesday, with a major legal battle in the works over whether a landmark decades-old federal anti-discrimination law that bars sex discrimination in the workplace protects gay and transgender employees.
The justices will hear two hours of arguments in three related cases involving an LGBTQ rights dispute.
One involves a former county child welfare services coordinator from Georgia named Gerald Bostock. Another involves a New York skydiving instructor named Donald Zarda. He died after the case began and the matter is being pursued by his estate. The third has to do with an ailing transgender funeral home director from Michigan named Aimee Stephens.
The US Supreme Court on Tuesday will hear three cases concerning protections for LGBTQ employees, two of them involving gay men Gerald Bostock (left) and Donald Zarda (right)
The third case involves Aimee Stephens, 58, who says she was fired from a Michigan funeral home in 2013 for being transgender
The cases are the first involving LGBTQ rights since the retirement of Justice Anthony Kennedy, the court’s gay-rights champion and decisive vote on those issues.
At issue is whether gay and transgender people are covered by Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of sex as well as race, color, national origin and religion.
President Donald Trump’s administration has argued that Title VII does not cover sexual orientation or gender identity.
The court, whose 5-4 conservative majority includes two Trump appointees, Justices Neil Gorsuch and Brett Kavanaugh, will hear two cases about gay people who have said they were fired due to their sexual orientation.
‘I didn’t ask for any of this. I found myself in this situation. This is a national issue of importance that needs to be confronted head on,’ Gerald Bostock said.
The third case involves a Detroit funeral home’s bid to reverse a lower court ruling that it violated Title VII by firing a transgender funeral director named Aimee Stephens after Stephens revealed plans to transition from male to female. Rulings in the cases are due by the end of June.
‘It would be nice if our rights were formally protected, that we have the same basic human rights as everyone else. We are not asking for anything special,’ Stephens said.
Crowds line up outside the Supreme Court as it resumes oral arguments at the start of its new term in Washington in Monday
Trump has taken aim at gay and transgender rights. His administration has supported the right of certain businesses to refuse to serve gay people on the basis of religious objections to gay marriage, restricted transgender service members in the military and rescinded protections on bathroom access for transgender students in public schools.
The legal fight focuses on the definition of ‘sex’ in Title VII. The plaintiffs, along with civil rights groups and many large companies, have argued that discriminating against gay and transgender workers is inherently based on their sex and consequently is unlawful.
Trump’s Justice Department and the employers in the cases have argued that Congress did not intend for Title VII to protect gay and transgender people when it passed the law. Conservative religious groups and various Republican-led states back the administration.
Religious-based employers that expect workers to live in accordance with their religious beliefs are concerned about facing increased litigation.
Gerald Bostock claims he was unfairly targeted by an audit, which was then used as a pretext to fire him for being openly gay
‘An expansion of the scope of Title VII will massively increase church-state conflict,’ said Luke Goodrich, a lawyer at the Becket Fund for Religious Liberty, a religious legal group.
Gerald Bostock worked in the Juvenile Court of Clayton County, Georgia. He’d worked for the county since January 2003 and had received good performance evaluations, according to his lawsuit originally filed in May 2016.
He joined a gay softball league in January 2013. His participation in that league and his sexual orientation were openly criticized by one or more people with decision-making power at his job, the lawsuit said.
He was told in April 2013 that an audit was being conducted on program funds he managed. Bostock contends the audit was meant to provide a pretext to discriminate against him ‘based on his sexual orientation and failure to conform to a gender stereotype.’
He was fired June 3, 2013, ‘for Conduct Unbecoming of a Clayton County Employee.’
Lawyers for the county argued in a response to his lawsuit that Title VII ‘was not designed or written to include protections for sexual orientation.’ Bostock also failed to identify any characteristic that distinguishes him from a ‘typical male,’ undercutting his gender stereotyping claim, they wrote.
A federal judge in 2017 dismissed Bostock’s case, and a three-judge panel of the 11th US Circuit Court of Appeals in May 2018 upheld that ruling, prompting his lawyers to appeal to the US Supreme Court.
The highest court in the land will also hear the case of Donald Zarda, who was fired in 2010 from Altitude Express Inc in Central Islip, New York.
His job as a skydiving instructor required him to strap himself tightly to clients so they could jump in tandem from an airplane. To put one female student at ease about the physical contact, he said, he told her not to worry — he was ‘100% gay.’
The school fired Zarda after the woman’s boyfriend called to complain.
The female client accused Zarda of inappropriately touching her and then coming out to her to cover for his behavior.
The skydiving company maintained that it was Zarda’s conduct, not his sexuality, that led to his firing.
Donald Zarda, who died in 2015 in a wingsuit accident, accused his former employer of firing him for telling a client he was ‘100% gay’ during a skydiving lesson
A federal appeals court in 2018 sided with Zarda, who died in 2015 in a wingsuit accident in Switzerland, ruling 10-3 that anti-discrimination law protects employees from being fired over their sexual orientation.
The last of the three LGBTQ cases that will be heard on Tuesday by Supreme Court justices involves Aimee Stephens, a former Baptist minister who she spent nearly six years as a licensed funeral home director and embalmer at R.G. and G.R. Harris Funeral Homes in Garden City, Michigan.
Stephens, then known as Anthony Stephens, came to work every day in a dark suit, white shirt and tie.
At the end of July 2013, Stephens met with owner Thomas Rost in the home’s chapel and handed him a letter in which Stephens revealed she had struggled with gender most of her life and had, at long last, ‘decided to become the person that my mind already is.’ Stephens wrote, ‘As distressing as this is sure to be to my friends and some of my family, I need to do this for myself and for my own peace of mind and to end the agony in my soul.’
Following a vacation, Stephens said she would report to work wearing a conservative skirt suit or dress that Rost required for women who worked at his three funeral homes.
‘He read the letter, folded it up and put in his pocket and we were basically done for that day,’ Stephens recalled. Two weeks later, Rost and Stephens met again, briefly. ‘He handed me a letter and said this is not going to work,’ she said.
The letter was a termination notice and the offer of a modest severance payment, Stephens said. She turned down the severance because it would have meant signing away her right to sue, she said.
Stephens took her complaint to the federal Equal Employment Opportunity Commission, which agreed to sue the company. During the Obama years, the EEOC had changed its longstanding interpretation of civil rights law to include discrimination against LGBT people. The law’s Title 7 prohibits discrimination because of sex, but has no specific protection for sexual orientation or gender identity.
The 58-year-old Aimee Stephens, who uses a walker and requires dialysis treatments three times a week, plans to attend the Supreme Court arguments
A trial judge ruled against her, but the federal appeals court in Cincinnati sustained the complaint. The court found that discrimination on the basis of transgender status is sex discrimination. The appeals court also separately found that Rost fired Stephens because of his sex stereotypes about Stephens’ appearance and dress.
Rost’s family has been in the funeral home business since 1910. He testified that Stephens dressed in women’s clothing would be ‘a distraction that is not appropriate’ for grieving families.
In firing Stephens, Rost was not trying to prevent her from dressing as she wants on her own time, his attorney John Bursch said, though he declined to use female pronouns to describe Stephens.
The 58-year-old Stephens, who describes herself on Facebook as a ‘transgender woman who is happily married to my wife of eighteen years,’ plans to attend the Supreme Court arguments despite dialysis treatments three times a week to deal with kidney failure and breathing problems.
‘I felt what they did to me wasn’t right. In fact, it was downright wrong,’ Stephens said. ‘But I also realized it wasn’t just me, that there were others in the world facing the same tune.’