In one of the most major trans civil rights legal cases of our time and a huge milestone for legal precedent when it comes to LGBT employees generally, the Supreme Court has ruled that the 1964 Civil Rights Act, which prohibits sex discrimination in the workplace, does apply to sexual orientation and trans status.
Arguments for this case were made back in 2019, and brought the cases of Aimee Stephens, who lost her job after coming out as a trans woman; Gerald Bostock, who lost his job after joining a gay softball league; and Donald Zarda, who lost his job after coming out to a client. The ambitious and first-of-its-kind case — Stephens’ lawyer Chase Strangio noted “Tuesday may feature the first time the word “transgender” is spoken during oral arguments in the highest court in the United States. And when the justices look out from the bench and see my co-counsel and me at counsel table, it may be the first time they have looked at transgender attorneys defending our own existence before their powerful bench” — it carves out new and crucial ground for legal recognition of LGBT citizens at all in federal law. As I wrote in 2019,
…[this] comes after years of cumulative work on the state level by attorneys and legal strategists who have variously argued in different court cases addressing sexual orientation, gender identity and gender conformity in the workplace that the prohibition against discrimination on the basis of sex enshrined by the Civil Rights Act of 1964 applies to openly gay, transgender and/or gender nonconforming people. The gist of their argument has been that firing, restricting hours of, mistreating or refusing to hire someone because of their gender presentation is sex discrimination because it’s dependent upon their sex as assigned at birth — a cis man wearing a button-down and tie to work being fine while an AFAB person wearing the same thing isn’t is discrimination based on their sex. Similarly, the argument goes, discrimination against people with a same-sex partner is dependent upon their sex; the status of “having a wife” is neutral, and only becomes a category subject to discrimination when the sex of the person who has a wife is female. While several different lower courts agreed with this interpretation, the Supreme Court is the final arbiter of whether that legal interpretation will stand as federal law.
The full opinion, which can be read here, was written by Justice Gorsuch along with the Chief Justice and Justices Sotomayor, Breyer, Ginsburg and Kagan, and among other things delivers a pointed argument against historicist interpretations of the Constitution that call for legal interpretations in keeping with the personal views of the founding fathers:
“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
This ruling is especially significant given that plaintiff Aimee Stephens tragically passed away in May of this year, before seeing her case receive the justice it deserves. This ruling also comes the same week that the Trump administration, in the midst of a nationwide revolution and global pandemic, has made the effort to roll back Obama-era language that enshrines protection against discrimination for trans people in healthcare and medicine. It also comes while our community is still mourning the lives of Black trans people attacked and killed, like Iyanna Dior, Tony McDade, Nina Pop, Riah Milton, and Dominique Fells, as well as many more. While federal law — or any law — is only the beginning of what’s necessary to ensure trans dignity, power and life, this decision is beyond historic, and a testament to the work of an incredible generation of activists and organizers.