Update: Officials from 16 states filed a brief with the Supreme Court asking them to overturn a federal court’s ruling that transgender people are protected from workplace discrimination. Read NCTE’s statement here.
When transgender Americans are asked what they need to thrive in society, the first and most common answer is “jobs.” A livelihood is the most crucial building block of a stable life, but one in six transgender people have been fired for simply being transgender. This compounds into higher rates of poverty, homelessness, and violence faced by the 2 million transgender people in the US.
For years, opinion polls have shown Americans think transgender workers — like all workers — deserve legal protection from this kind of discrimination. And for nearly two decades, federal courts have overwhelming agreed that Title VII does and should protect transgender workers.. But an anti-transgender lobby group is now asking the Supreme Court to throw out those rulings and legalize discrimination — just in time for it to be heard by President Trump’s latest nominee.
The Alliance Defending Freedom — or ADF — wants the Supreme Court to pick up the case of Aimee Stephens. Aimee was a successful funeral director at a Michigan funeral home chain for six years. After many months consulting with her therapist, she came out to her boss a and was immediately fired. The company’s owners said it was “unacceptable” to employ a transgender funeral director.
A federal appeals court ruled Ms Stephens’ rights were violated by her employer, reaffirming prior rulings that firing someone simply because they are transgender is sex discrimination under federal law.
“An employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align,” the Sixth Circuit ruled in Stephens’ case. “There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try.”
ADF’s petition to the high court ignores these arguments. Indeed, it contains more thinly-veiled disgust at transgender people than genuine legal debate. The petition describes transgender employees, and past rulings recognizing their rights, as “disruptive, “distracting,” “bewildering,” and “incomprehensible.” The petition derides people like Ms. Stephens as “men who wear dresses,” and repeatedly suggests that the mere presence of a transgender person is so bizarre as to “disrupt the healing process of grieving families.”
Ironically, the ADF filed this petition the same week of the death of Ann Hopkins, whose fight for gender equality at the Price Waterhouse law firm resulted in the landmark 1989 Supreme Court case that bears her name. Hopkins won her case on the grounds that her employer denied her a promotion because she did not conform to stereotypes of how women should dress and act.
Hopkins’s fight for equality under the law set the standard for cases like that of Aimee Stephens, and Price Waterhouse is cited throughout the Sixth Circuit’s rulings in this case. Like Hopkins, Stephens is standing up to an employer who tried to pigeonhole her into their view of what makes a man and what makes a woman.
This petition ignores that legacy of Hopkins and instead hinges itself on fear-mongering and paranoia. It obscures the clear consensus of federal courts, and caricatures Aimee Stephens and all transgender people as outliers who don’t belong in a “professional” workplace. Of course, obvious bias and mistruths are what you get when you try to rush a petition together to ride on the coattails of a new Supreme Court pick.
Trump nominee Brett Kavanaugh has a long record of siding with employers against claims of workplace discrimination, and he might particularly like ADF’s backup argument that an employee’s rights can be trumped by an employer’s religious beliefs. The funeral home says that simply employing Ms. Stephens would send the message that it approves of transgender people.
Kavanaugh is on the record taking an extreme view of employers’ right to impose their religious views on employees in this way, going well beyond the Supreme Court’s rulings to say that employers who disapprove of birth control can effectively deny their employees insurance coverage. No wonder the anti-LGBTQ Family Research Council has worked so hard to get him on the bench.
Kavanaugh is largely the culmination of a campaign against LGBTQ workers designed by groups like FRC and ADF and led by the Trump administration itself. The administration has already set its sights on legalizing anti-LGBTQ bias, going out of its way to try to convince the courts to reject workplace protections. Last summer, the Justice Department jumped into a private lawsuit to argue that anti-gay firings are okay. Last fall, Jeff Sessions adamantly denied transgender workers have any protection under the law.
One hopes the sloppiness of ADF’s petition will immediately disqualify it from consideration. But should it get picked up, Kavanaugh could tip the balance of the court on whether a group of 1.4 million American adults can be denied a job because of who they are.
Kavanaugh or any other justice will hold untold power over the well-being of transgender people like Aimee Stephens. We have made great strides in recent years in and out of the courts. But in a country with groups like ADF and many others like it, none of our progress can be taken for granted.