Today, the Supreme Court heard oral arguments on three cases to decide whether or not employers can fire someone from their job for failing to conform to sex stereotypes. While these cases have largely been framed as whether or not anti-discrimination protections apply to gay or transgender employees, it cannot be overstated how much impact these decisions will have on all employees in America.
Title VII, the federal employment anti-discrimination law which was part of the 1964 Civil Rights Act, “prohibits employment discrimination based on race, color, religion, sex, and national origin”. While the notion that employers may not discriminate on the basis of sex may sound straight forward, courts have repeatedly ruled on what kinds of unfair treatment counts as discrimination on the basis of sex under Title VII. One of the most important court cases on this topic is Price Waterhouse v. Hopkins (referred to in shorthand as Price Waterhouse). Price Waterhouse was a 1989 Supreme Court decision that found that sex stereotyping is discrimination on the basis of sex. Because of Price Waterhouse, employers cannot fire you for failing to conform to sex stereotypes.
From the Price Waterhouse v. Hopkins decision:
As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for “ ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’
The questions before the court are whether Title VII’s prohibition of discrimination on the basis of sex protects LGBQ employees and/or Trans employees. If the court answers no, then employees in places without state-level protections, like those we have in Minnesota, can be fired from their job simply for being LGBTQ.
Gender Justice believes LGBTQ employees are clearly protected under Title VII, particularly because sex discrimination includes sex stereotyping. Mr. Zarda and Mr. Bostock weren’t fired from their jobs because they were married, they were fired because they weren’t married to women. Ms. Stephen’s wasn’t fired from her job because she identifies as female, she was fired because she identifies as female and was assigned male at birth. Sex stereotyping is clear in all three cases. They were all fired for not conforming to their employer’s notions of how a person assigned male or female at birth should look, dress, or act, or who they should love. This is sex stereotyping and it affects all of us.
Lawyers with Alliance Defending Freedom, a designated hate group, argue that LGBTQ employees should be exempt from protections from discrimination under Title VII. For groups like Alliance Defending Freedom, the goal is to make it legal and easy for LGBTQ folks to be discriminated against at work, in school, and in public. Their goal is to make it as hard as possible for LGBTQ people to live with dignity.
SCOTUS heard arguments about three cases that all center around whether Title VII protects all people from sex discrimination, including LGBTQ employees. Don Zarda and Gerald Bostock’s address protections based on sexual orientation while Aimee Stephen’s case asks whether an employee can be fired for being transgender.
Case #2: A case brought by Gerald Bostock, who was fired from his job for being gay, after he told his co-workers he played in a local gay softball league. Gerald spent over a decade building and managing the county Court Appointed Special Advocates Program (CASA), which trained and managed volunteers to represent children in court who have been victims of abuse and/or neglect. Worse, at the time he was fired,Gerald was recovering from cancer and the loss of his job also meant the loss of his health insurance.
Note: because both Zarda and Bostock’s cases address discrimination the basis of sex for gay and lesbian employees, they were condensed into one case and oral arguments for and against were made together.
Case #3: Aimee Stephens, a professional who has worked in funeral services for almost 30 years, was fired from her job of six years, on the same day that she told her boss she is transgender.
Keep reading for our live chat on this morning’s oral arguments of Aimee Stephens’ case with advocacy director Erin Maye Quade and legal director Jess Braverman.
EMQ: Transcripts are out!
JB: Oh my god, it's 71 pages.
EMQ: When you were in law school, is this what you dreamed you’d be doing? Reading SCOTUS transcripts for work?
Just so we’re clear:
Aimee = Aimee Stephens, woman who was fired from her job
Mr. Cole = Aimee’s attorney
Harris Homes = Aimee’s place of employment
Mr. Rost = Aimee’s boss who fired her for being transgender
Mr. Bursch = Alliance Defending Freedom Lawyer Representing the funeral home/Mr. Rost
Process: first, Mr. Cole (Aimee’s lawyer) makes his arguments to the court. Then Alliance Defending Freedom (through Mr. Bursch) makes theirs. The Department of Justice argues last for the government and Mr. Cole gives closing remarks.
Okay, let’s dig in.
Mr. Cole gets right down to the point! I find this argument compelling "In [firing Aimee], [Harris Homes] fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives".
JB: In Price Waterhouse the Supreme Court said "[w]e need not leave our common sense at the doorstep when we interpret a statute." Ms Stephens' lawyer makes it clear from the start that the fact that this is even an open question defies all common sense - of course firing someone for being trans is discrimination because of sex.
EMQ: I feel like I haven't seen a lot of analysis that includes "sex stereotyping" to be an illegal form of sex discrimination, as decided in Price Waterhouse.
So Mr. Cole lays out three ways firing Aimee for being transgender was discrimination:
First, in firing her for failing to conform to its owner's explicitly stated stereotypes about how men and women should behave, it discriminated against her in the same way that Price Waterhouse discriminated against Ann Hopkins for failing to walk and talk more femininely.
Second, in [firing Aimee], [Harris Homes] fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives.
Third, Harris Homes fired her for, in its owner's words, changing her sex. That's discrimination in the same way that firing someone for changing their religion would be religious discrimination.
Do you think one of these arguments is more important than the others?
JB: I think they can be summarized as:
can a boss tell any employee how to dress or act based on sex stereotyping,
can a boss specifically tell a trans employee how to act or dress rooted in stereotypes about that person's sex assigned at birth
can a boss fire someone simply for being trans?
They're all really important points - the first one makes it clear that Aimee Stephens is fighting for trans employees and she's fighting for all of us. No one wants to be told how to act or dress based on sex stereotypes or risk their job (except apparently the TERFs - but more on that later.
EMQ: TERFS!!! BOOOO
JB: The second and third point together really make it clear that there is a concerted effort to write trans people out of existence and ensure they are not protected.
EMQ: I think that's why I've had such a hard time wrapping my head around this case and this trio of cases. Firing someone for being transgender is sex discrimination. Firing someone for being gay is sex discrimination. The sex of the employee is at the core of the issue, how could it not be sex discrimination?!
That’s the point though, right? To create a bunch of exemptions to anti-discrimination laws so that technically it’s not illegal to be LGBTQ, but it’s incredibly hard to live freely.
JB: The laws are written by people and interpreted by people and reflect the life experiences of those people - unfortunately most judges have no had enough experience with trans and gender nonconforming people to understand how ludicrous it is to even question this.
EMQ: Yeah, I guess. Maybe it’s because I’m particularly fiery today, but I’ve always hated the argument that you have to experience the kind of oppression/discrimination in order to be against that kind of oppression/discrimination. I’ve never been discriminated against because of my religion, but I’m fiercely opposed to religious discrimination, ya know?
EMQ: I like this! ^^
Justice Gorsuch said: "At the end of the day, should he or she [the judge] take into consideration the massive social upheaval that would be entailed in such a decision.”
JB: The judges seem to be throwing at Mr. Cole all these things that the ADF have been messaging about for years - like trans people in bathrooms, locker rooms and sports are a threat to cis people, particularly cis women, and if any of these gendered institutions become more inclusive society will somehow fall apart. They also seem to suggest that trans rights would be something entirely new, which is actually not the case in many jurisdictions.
Ms. Stephens’ lawyer did a fantastic job of addressing this though.
First he says: “federal courts of appeals have been recognizing that discrimination against transgender people is sex discrimination for 20 years. There’s been no upheaval.”
EMQ: Trans people have been around FOREVER. EVERYONE IS FINE.
JB: The lawyer then notes: “As I was saying, there are transgender male lawyers in this courtroom following the male dress code and going to the men's room and the -- the -- the -- the Court's dress code and sex segregated restrooms have not fallen.”
EMQ: THE COURT HAS NOT FALLEN! Love that.
Trans people are not new. Acknowledging that everyone has a right to live free from discrimination is not “massive social upheaval”. I hate that getting our legal system to acknowledge that trans people are people, and thus should have the same rights as cis-gender people, is treated like its a favor.
JB: Supreme Court judges appear to be under the impression that trans people aren't peeing until the Supreme Court decides which bathroom they can use.
EMQ: Mr. Cole has wrapped up—I really hate how quickly it went away from discrimination to bathrooms and sports. Just every anti-LGBTQ talking point. Mr. Bursch from Alliance Defending Freedom is starting.
JB: The ADF seems to be heavily relying on their messaging that basically this is not about trans people demanding dignity, this is about cis men who will claim they are trans to be able to use bathrooms. They've managed to shoehorn this into a case where an employer fired someone who is a trans woman for being a trans woman. Meanwhile in Masterpiece Cake Shop, where a baker argued that having to make a cake for the wedding of a gay couple would violate his religious and speech rights, someone on the Colorado civil rights commission suggested that religion has been used to justify despicable discrimination throughout history, such as slavery, and this was enough for the Supreme Court to find that the Colorado commission acted with animus against religious people.
EMQ: Okay… I’m super confused. Mr. Bursch is making zero sense: “First, [Mr. Cole’s] but-for test would mean that a women’s overnight shelter must hire a man who identifies as a woman to serve as a counsellor to women who have been raped, trafficked, and abused and also share restroom, locker, and shower facilities with them. That is because, but for the man’s sex, he would be allowed to -- to hold that job and use those facilities.”
Does he not...does he not know that men can be, and are, counselors to women who are victims of rape and abuse?? And is this his argument? If LGBTQ people are protected by federal employment anti-discrimination law then...men will be social workers?!!
JB: Well, we’ve spent 20 something pages being offensive to trans people, we’re also referring to trans-women as “a man who identifies as a woman” so why not offend cis-men too while we’re at it by suggesting that they’re all scary rapists who can’t control themselves around women?
EMQ: At Gender Justice, we fight against ALL forms of gender bias--including this insidious narrative that all men are dangerous threats to women.
JB: Shout out to all the amazing cis-male social workers out there - we don’t all think this, just the Alliance Defending Freedom does, apparently!
EMQ: yes, yay social workers!
EMQ: Justice Breyer!!! He said: "You've made the argument which I call the parade of horribles argument". PARADE OF HORRIBLES!
JB: "Parade of horribles" is a term thrown around in legal cases - coincidentally it's also what happens when there's a fire drill at the Act for America offices.
EMQ: I'm so glad Justice Kagan is asking about Mr. Bursch's reliance on dress code! Bursch keeps bringing up dress codes as if it’s totally fine to fire employees because of their gender identity because... dress codes(?!). Obviously, this case has nothing to do with any dress codes. Aimee never violated or conformed to a dress code--she was fired THE MINUTE AFTER her employer read her letter expressing her gender identity.
I’m having a hard time following Bursch’s arguments because they’re so nonsensical. It helps that Justice Breyer is kind of laying out the arguments, as he’s heard them. He's gotten to the crux of the ADF's argument (I think): because Congress didn't mean for “sex” to include LGBTQ people when they wrote the 1964 Civil Rights Act, we aren’t protected by it now.
Justice Breyer: “That Congress wouldn’t have dreamt of this when it passed the statute.”
Oh, but this part is really resonating with me!
Ohh RBG, yes!! Justice Ginsburg: No one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in '64. It wasn't until a book was written in the middle '70s bringing that out. And now we say, of course, harassing someone, subjecting her to terms and conditions of employment she would not encounter if she were a male, that is sex discrimination but it wasn't recognized to be such in the beginning.
JB: What the Court in Price Waterhouse did was say yes, of course you can't fire a woman for being a woman, that is clearly sex discrimination. But you also can't fire a woman for not conforming to your ideas of how a woman should act and dress and talk. And this was seen by many as a departure from the plain language of Title VII which includes "sex" but does not include "sex stereotyping." "Sexual harassment" is also a phrase that is not explicitly in Title VII.
EMQ: That is a REALLY good point! Justice Sotomayor really hit it home:
“at what point does a court continue to permit invidious discrimination against groups that, where we have a difference of opinion, we believe the language of the statute is clear. And we can't deny that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs poorly, not because they can't do whatever is required of a position, but merely because they're a suspect class to some people. At what point does a court say, 'Congress spoke about this, the original Congress who wrote this statute told us what they meant. They used clear words. And regardless of what others may have thought over time, it's very clear that what's happening fits those words'. At what point do we say we have to step in?”
Good point! And that point is now. They should step in now.
So, Mr. Cole is wrapping up--and with your explanation of Price Waterhouse, his closing statement is even more powerful.
Here's a piece of his statement I liked
"This Court 30 years ago said in Price Waterhouse: "We are beyond the day when an employer could evaluate employees by insisting that they match the stereotypes associated with their group." We are certainly beyond that day today as well, and what Harris Homes did was to insist that she match the stereotypes associated with her group. That's impermissible under this Court's precedence, that's impermissible under the literal terms of the statute and this Court should rule for Aimee Stephens."
We made it through all 71 pages! What do you think?
JB: This whole thing is just super offensive - this case can only exist in a world where people are willing to perform verbal and conceptual acrobatics to deny trans people their basic dignity. Where people are even willing to fight against their own self-interest to deny trans people their rights (*ahem* TERFs*).
EMQ: Offensive is a really good term! Its Simone Biles’-level** attempts at gymnastics to say firing someone because they don’t identify with the sex they were assigned at birth isn’t sex discrimination. The arguments made here were particularly awful because they’re trying to deny rights to trans people by couching discrimination in this "we must protect women" or "women's sports" blah blah blah argument. SO offensive!
There are literally enough rights for everyone.
You get rights! You get rights! EVERYBODY GETS RIGHTS!!
*Trans Exclusionary Radical Feminists are a group of cis-women who don't believe trans people truly exist and who believe women's rights would fall apart if trans women are treated with dignity. They are willing to argue against the Equal Rights Act, against laws that would protect all women from being forced to dress or act a certain way by their bosses, all to deny trans people their right to exist in society. I understand they're out today in DC protesting Aimee Stephens.
**Simone Biles is GOAT. Also mega congrats to Sunisa Lee!
We made it! Thanks for sticking with us while we unpacked today’s oral arguments. Stay tuned for more news and updates on the new supreme court session.
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