Many LGBT Americans Can Still Be Fired for Their Identities. The Supreme Court Could Change That.

The justices will hear several cases pertaining to discrimination against LGBT employees this Tuesday.

Maggie Chirdo
NYU Local

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Graphic by author.

The Supreme Court will hear a set of cases on Tuesday in which employers are being sued for firing their employees on the basis of their sexuality or gender. The justices have the power to rule that federal civil rights protect LGBT Americans across the nation. But they can also decide to allow discrimination against gay and trans employees to continue—on a state-by-state basis — unchecked.

At the heart of this ruling is Title VII of the Civil Rights Act of 1964. It states: “It shall be an unlawful employment practice for an employer…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Lawyers and activists have long interpreted “sex” to also apply in cases of sexual orientation discrimination as well as gender discrimination against women. Essentially, if you cannot be fired based on your sex (legally, male or female), then you cannot be fired if/when an employer realizes you are attracted to or dating someone of the same-sex. Additionally, if an employer hired you assuming you were one sex, that employer cannot fire you upon realizing you are a different sex.

The first case the court will hear involves a man, Gerald Bostock, who was fired after joining a gay softball team. The second case pertains to Aimee Stephens, a transgender woman fired after informing her boss and coworkers of her gender identity.

The Supreme Court, since the addition of Brett Kavanaugh and Neil Gorsuch, has a solid conservative majority and the Trump administration has sided with the employers in these situations, citing the First Amendment’s protection of religious freedom. The decision on today’s hearings will not be released until the middle of 2020.

The Supreme Court has been the battleground for LGBT rights for almost two decades, with the decriminalization of homosexual activity in 2003 and marriage equality in 2015. Some have seen the fight as won since the 2015 decision, and the decisions in Lawrence v. Texas and Obergefell v. Hodges case were important landmarks for LGBT rights, but they are by no means the end. LGBT Americans still need support from their cisgender and straight allies, and a loss for LGBT rights could negatively affect policies that enforce equal treatment based on gender.

Nearly half of Americans believe that lesbian, gay, and bisexual people are protected from sexual orientation discrimination under federal law, according to a 2019 Ipsos poll conducted for Reuters. They’re wrong.

As of right now, less than 10 percent of LGBT individuals live in states that explicitly interpret existing non-discrimination laws as inclusive of sexual orientation and gender identity, according to statistics from the Movement Advancement Project. Employers in 28 states can fire employees based on their sexuality and gender.

LGBT individuals, just like everyone else, need employment to survive in this nation. They are our teachers, our lawyers, our sanitation workers, our healthcare providers, and more. Aimee Stephens was a funeral director in Michigan. Gerald Bostock was a child welfare services coordinator in Georgia. They wanted to do their jobs as best as they could and were denied based on who they were and who they loved. The most powerful judges in the most powerful country in the world have the opportunity to protect its citizens against gender and sexual orientation discrimination. Will they?

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Aspiring caretaker of a haunted greenhouse. Former Co-EIC at The Interlude. Words in Entropy Magazine, Bitch Media, Texas Observer, NYU Local, and more.