The Supreme Court’s Sex Discrimination Case Affects Us All

LGBTQ rights are at risk, and so are the rights of everyone to be who they are.

Darcy Reeder
Oct 8 · 5 min read
Person with long straight blonde hair, in a black suit jacket
Person with long straight blonde hair, in a black suit jacket
Photo by Joanna Nix on Unsplash

Women, what if your boss fired you for getting a pixie haircut, because he didn’t consider it feminine enough?

Men, what if you put a photo on Facebook of your child painting your toenails, and your boss fired you for not being masculine enough?

Today, the Supreme Court hears three cases centered on sex discrimination in the workplace. The cases concern a trans women and two gay men, all fired for being LGBTQ. Yes, the legal implications for basic rights of LGBTQ individuals are huge here, and that’s more than enough reason to care about the outcome.

But if you don’t identify as LGBT, so you think this case doesn’t personally affect you: think again.

In question is the meaning of sex in Title VII of the Civil Rights Act of 1964, which protects workers from being fired or otherwise discriminated against “on the basis of race, color, religion, sex, or national origin.”

What does it mean that employers can’t discriminate on the basis of sex? Title VII is vague, saying only, “The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.” [emphasis mine]

Thankfully, we have precedent. The 1989 Price Waterhouse v. Hopkins Supreme Court decision established gender stereotyping as sex discrimination. In this case, Ann Hopkins argued her accounting firm denied her partnership because she didn’t fit the partners’ idea of what a female employee should look like and act like.

Sex stereotyping is the issue again today.

In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Aimee Stephens’ boss Thomas Rost fired her from the funeral home she’d worked at for six years, because Stephens intended to start wearing the “female uniform”. Clearly, the uniform was professional, and Rost would have no problem with a female-bodied employee wearing it; he fired Stephens because she was trans. He fired her because he expected different dress from different employees, based on sex stereotypes. He fired her on the basis of sex.

“The Trump administration and the Alliance Defending Freedom, who is representing Aimee’s employer, really do want a world where a woman could be fired for not being feminine enough, as long as they would fire a man for not being masculine enough.” Chase Strangio said this week on Democracy Now. Strangio is deputy director for transgender justice with the ACLU’s LGBT & HIV Project, and counsel for Stephens in her sex discrimination case.

Rost says he had to fire Stephens, because he would be “violating God’s commands” if he allowed her to dress in women’s clothing.

Do we want someone’s ideas of God’s commands to dictate what each of us can wear at work?

Who exactly will decide whether females are being feminine enough, whether males are being masculine enough? Your employer’s religious leader? The Trump administration?

The other two sex discrimination cases — Bostock v. Clayton County, Georgia, and Altitude Express, Inc. v. Zarda — have been consolidated because they concern the same issue, an employer discriminating based on sexual orientation.

A woman can’t legally be fired for dating a man. So if a man can be fired for dating a man, he is being discriminated on the basis of sex.

Again, the Supreme Court’s ruling will hugely impact LGBTQ people, but it could affect even straight cis people. Does anyone want to live in a world where you can be fired for who you are attracted to?

If the Supreme Court finds it’s legal for an employer to fire someone for being gay, that means they can also fire you for posting on Facebook that you have a man crush on Brad Pitt. It means they can fire you for having a gender-nonconforming girlfriend.

If the Supreme Court takes away the protection against sex stereotyping, it means employers can fire women for wearing suits. It also means they can fire men just for dating a woman who wears suits.

Who exactly will decide whether females are being feminine enough, whether males are being masculine enough? Your employer’s religious leader? The Trump administration?

Every single one of us is gender-nonconforming at times. And gender expectations fluctuate and differ depending on culture.

Again, even if these cases only concerned LGBT people, we need to be concerned. But when rights are eroded for one class of people, it affects us all.

“If we lose this, then it’ll be okay for them to say, ‘You’re not the right kind of woman,’ or, ‘You’re not the right kind of man,’ even if you’re not transgender or LGBTQ+,” Laverne Cox, transgender actress and activist, said on Democracy Now. “And that is not the kind of America I want to live in.”

Americans have reason to worry. This week starts the first full Supreme Court session with both Trump appointees Neil Gorsuch and Brett Kavanaugh. The court will decide many controversial cases this year, concerning abortion, guns, and DACA, as well as today’s sex discrimination case.

Kavanaugh faces calls for impeachment, with multiple allegations of sexual misconduct against him, but for now, he’s on the court. And regardless of how obvious it may seem to some of us that our employers have no place policing our gender expression or sexuality, our conservative-majority court may find otherwise.

Today’s cases are about workplace discrimination, but the court’s decision will inform future cases about discrimination in other areas of our lives where we have legal protection against sex discrimination: human rights issues like access to housing, health care, and education.

Hopefully, Title VII protections in regards to sex discrimination will continue to be interpreted broadly, as they have been for race. In 1964, the intent of “on the basis of race” was narrow— legal protections for Black people — but it’s been interpreted by the government to protect all races. Regardless of 1964 intentions, we deserve a broad interpretation that protects all of us from discrimination.

Otherwise, dads could get fired for being loving parents, wearing a pink tie, or admitting to crying. Females could get fired for not wearing makeup. Males could get fired for wearing makeup. And the decision to come out as LGBTQ could get a whole lot harder.

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Darcy Reeder

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Empathy for the win! Top Writer— Essays on Feminism, Culture, Relationships, Sexuality, Veganism, Politics, and Parenting. She/Her/They darcyreeder.substack.com