Can a business fire someone because they're LGBTQ? The Supreme Court will soon tell us.
After a funeral home outside Detroit fired Aimee Stephens because she is transgender, Aimee won a federal appeals court ruling that the firing violated the federal law barring sex discrimination in the workplace. After Don Zarda was fired from his job as a skydiving instructor because he's gay, another federal appeals court ruled that his firing, too, was sex discrimination.
On Monday, the Supreme Court announced that it would take up Aimee and Don's cases, plus a third, to decide whether to take those civil rights protections away from Aimee, Don and all LGBTQ people in America. Not surprisingly, President Trump's Department of Justice will argue that it should.
In Aimee's case, she worked for six years in a job she loved as a funeral director, getting great reviews. Her boss and co-workers knew her as a man, but she always knew she was female. In 2013, Aimee gathered the strength to come out to her supervisor as the woman she is. She was hoping to find acceptance and to be judged on her good performance alone. Instead, her boss fired her, leaving no doubt that that the reason was that she was transgender.
In Don's case, he worked at a skydiving company on Long Island, New York. Don's teaching often involved tandem skydives, in which he was strapped hip-to-hip and shoulder-to-shoulder with customers learning how to jump. In the summer of 2010, as Don was strapping himself to a female customer for one of those tandem dives, he told her that he was gay to assuage any concern she had about being strapped to a man she didn't really know. He never thought the comment would cause the end of his career at Altitude Express. But after the dive, Don's boss fired him because he had come out to the woman.
In both Aimee and Don's cases (both ACLU cases), the appeals courts ruled that they were discriminated against because of their sex. If Aimee was a fine employee when her boss thought she was a man, but unacceptable when he learned she was a woman, it's frankly hard to see what it could be other than sex discrimination. In addition, the court in Aimee's case — following court decisions over many years — held that discrimination based on transgender status is a form of sex discrimination because it's impossible to describe what it means to be transgender without talking about a person's sex.
Similarly, the court in Don's case held that discrimination based on sexual orientation is a form of sex discrimination because you can't describe what it means to be gay without talking about the sex of the people involved.
In addition, the courts held that both Aimee and Don were penalized for failing to conform to their employer's sex stereotypes — in Don's case that men should be attracted to women and in Aimee's case that people who are assigned the male sex at birth are not supposed to look and behave as women.
The Equal Opportunity Employment Commission agrees that anti-LGBTQ discrimination is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. And for several years it has been enforcing that statute on behalf of LGBTQ people from every corner of the country who face workplace discrimination.
Unfortunately, President Trump's Justice Department has taken the opposite position — arguing in both of these cases that it's perfectly legal under federal law to fire Aimee because she's trans and Don because he's gay.
The Supreme Court ruling that Trump seeks — that firing LGBTQ people is legal — would shock most of America. A core American value is that people should be judged in the workplace based on their performance, not their identity. It's a travesty that our government is advocating for discrimination to be legal. Seventy percent of the American public agrees that not only that LGBTQ people should be protected, but thinks that we are protected under federal law.
The stakes here are huge. If federal law says it's fine to fire someone because she's lesbian or transgender, other federal civil rights laws may well not protect LGBTQ people, either. The federal education anti-discrimination law may not stop schools from harassing transgender students. The Federal Housing Act may not stop landlords from evicting same-sex couples. And the Affordable Care Act may not prevent health care providers from turning away transgender people. In fact, such a ruling could lead to the very "erasing" of transgender people from civil rights laws that the Trump Administration is reported to have been considering last fall.
For Michigan, there could be unique consequences. In May 2018 the Michigan Civil Rights Commission interpreted our state civil rights laws to cover LGBTQ discrimination under the protected category of sex. In doing so, the Commission specifically referred to the Aimee Stephens legal decision. Since that time the Michigan Department of Civil Rights has been investigating LGBTQ discrimination complaints and for the first time ever, LGBTQ Michigan residents have a state remedy to address discrimination. In January 2019, Gov. Whitmer issued an executive directive prohibiting LGBTQ discrimination in state employment, government contracts and accessing government services. Her executive directive also made specific reference to federal case law precedent regarding LGBTQ discrimination as sex discrimination. All of this could be upended if the Court sides with the Trump Administration. Elections do have consequences.
Tragically, Don died in a skydiving accident in 2014. Don's surviving partner, Bill Moore, and his sister, Melissa Zarda, have continued the lawsuit on behalf of Don's estate. Bill and Melissa will be at the Supreme Court this spring along with Aimee, and all three will fight to ensure that the court doesn't strip millions of LGBTQ people in America of the federal non-discrimination protections that current law provides.
Here's hoping the court lives up to the nation's values and rejects the Trump administration's effort to relegate LGBTQ people to second-class status.
Editor's Note: Director of the National ACLU LGBT Project James Esseks helped contribute to this piece.
