In 26 states, because of a lack of explicit protections for workers based on their gender identity, transgender workers can still be legally fired for being trans. On October 8, the Supreme Court will take up a case born out of this gap, taking the first steps in deciding whether it believes trans workers are protected under the 1964 Civil Rights Act. In the case, the high court will hear arguments on behalf of three workers who argue they were fired for being gay or trans. Two of the cases were brought by gay men, Gerald Bostock and the late Donald Zarda, who asserted they were fired from their jobs as a child welfare services worker and a sky diving instructor, respectively, because of their sexual orientation. The third case involves Aimee Stephens, a trans woman who was fired by her employer after she told him that she was trans.
Stephens’s case is the first trans civil rights case that the Supreme Court has agreed to hear. If she wins, it would be, in the words of Vice’s Diana Tourjée, a “landmark ruling for the transgender civil rights movement.” But it is uncertain, to put it mildly, that Stephens will prevail, given the conservative leanings of the Supreme Court. Unsurprisingly, the Trump administration is once again siding with anti-trans bigots and, in a marked departure from the Obama administration, arguing that trans people should not be protected by existing civil rights protections. (Earlier this year, the Department of Justice filed a brief arguing that “treating a transgender person less favorably than a non transgender person because he or she is transgender does not fall within that bar” set by Title VII of the 1964 Civil Rights Act.)
Joining the Trump administration in arguing that trans people should be excluded from federal civil rights protections are a host of anti-trans individuals and organizations like the right-wing Alliance Defending Freedom, which is representing Stephens’s former employer, and the Heritage Foundation’s Ryan T. Anderson and the Women’s Liberation Front, or WoLF, both which have recently filed amicus briefs arguing, in essence, that trans women are not women and thus deserve no federal civil rights protections.
On Monday, they were joined by Republican members of Congress as well as the attorneys general for 15 states, who filed briefs arguing that, as NBC News reported, “LGBTQ workers are not protected by federal civil rights law.” In the brief filed by the attorneys general, they wrote, in a telling paragraph, that extending federal civil rights protections to trans people is “fraught with sensitive issues.” “Must a school allow a biologically male student who identifies as a female to participate on a women’s sports team?” they wrote.
If this sounds familiar, it’s likely because the Trump administration, Republican elected officials, and the religious right are taking their cues from trans-exclusionary radical feminists, or TERFs, who have long attempted to argue that trans women are not women and that extending protections to trans women—and all trans people more broadly—threatens the rights and safety of women. It would be a laughable argument if it weren’t gaining traction in an administration and a right-wing movement that have elevated their attacks on trans people in recent years. And they have made the strategic assessment that using this line of attack is a winning one.
In 2013, Stephens, at the time a funeral director at R.G. and G.R. Harris Funeral Homes in Michigan, told her employer, who has been described as a “devout Christian” in court documents, that she was trans. She also informed him that she would begin coming to work dressed “in appropriate business attire” for women. She had, she wrote in a letter, “decided to become the person that my mind already is.” She was fired two weeks later.
Here’s how Bloomberg Businessweek described what happened:
Stephens offered to answer any questions her boss, Thomas Rost, might have and enclosed her therapist’s business card in case he wanted another perspective. She says he replied, “I’ll get back to you,” and walked away. A couple of weeks later, Rost fired Stephens. In a later deposition, he said he’d done so because Stephens “was no longer going to represent himself as a man” and “wanted to dress as a woman” instead.
After Rost fired her, Stephens worked with her local ACLU chapter to file a complaint with the EEOC. After a lower court ruled in favor of Harris Funeral Homes, arguing that “federal religious freedom law prevented the EEOC from forcing the company to rehire Stephens,” the Sixth Circuit Court of Appeals overturned that ruling in March of 2018 and decided in Stephens’s favor, finding that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”
Harris Funeral Homes, backed by the ADF, is now asking the Supreme Court to overturn the Sixth Circuit Court’s ruling. And the arguments that the ADF, the Heritage Foundation’s Anderson, WoLF, and a host of other right-wing individuals and organizations are making go far beyond just arguing that existing law does not include trans people in its definition of sex-based discrimination. They are, as the ACLU’s Chase Strangio wrote, making “sweeping calls for the near expulsion of transgender people from society.”
Deploying the kind of pseudo-feminist rhetoric pushed by TERFs like WoLF that has become a cornerstone of right-wing talking points against trans people, the ADF wrote in its brief:
Redefining sex discrimination will cause problems in employment law, reduce bodily-privacy protections for everyone, and erode equal opportunities for women and girls, among many other consequences.
The brief added that protecting trans rights under sex discrimination laws
would also, among a litany of other unrealistic outcomes, “require domestic-abuse shelters to allow men to sleep in the same room as female survivors of rape and violence” and even, astonishingly, cause “potential harm to individuals experiencing gender dysphoria.”
WoLF’s brief lays out their position clearly:
Legally redefining “female” as anyone who claims to be female results in the erasure of female people as a class. If, as a matter of law, anyone can be a woman, then no one is a woman, and sex-based protections in the law have no meaning whatsoever.
If trans women are given civil rights rights protections, the group warned:
It will mark a truly fundamental shift in American law and policy that strips women of their right to privacy, threatens their physical safety, undercuts the means by which women can achieve professional and educational equality, and ultimately works to erase women and girls under the law.
It then described trans women as “men claiming to be women.” Echoing WoLF, Anderson, who has repeatedly featured WoLF members on panels at the Heritage Foundation, wrote that finding in Stephens’s favor would “spell the end of girl’s and women’s athletics, along with private facilities at school.”
At the heart of their arguments, of course, is a belief that trans women are not women. The Heritage Foundation’s Anderson, to justify his position, reasoned, “It is not that Stephens was ‘insufficiently feminine’; it is that Stephens is not a woman.” (These same groups and individuals have deployed similar arguments against the Equality Act, which if passed would enshrine protection from gender-based discrimination in federal civil rights law.)
But contrary to the bigoted arguments being put forth by these groups, a failure to protect Stephens and trans people at work would, as Vice’s Tourjée wrote, “have severe consequences for cis women, too.” While TERFs and transmisogynists alike try to pit them against each other, the rights of trans women and cis women are bound up together.
Tourjée elaborated on that point:
Stephens was fired for her supposed inherent inability to conform to her employer’s subjective perspective on what women at work should look like, so if the Supreme Court says that’s legal, every woman in the United States may then also be forced to conform to an employer’s subjective, stereotyped idea of how a woman should look at work if she wants to keep her job. Hopefully she doesn’t look too much like a man in the opinion of her employer.
“If the Supreme Court agrees, it will have established precedent that employers are allowed to make up their own gender-specific policies based on their personal beliefs about how men and women should look and behave,” she added.
But it is still, undoubtedly, trans women like Stephens who are most affected and vulnerable to this kind of discrimination. According to Bloomberg Businessweek, Stephens has not found consistent work after being fired in 2013, and has largely been unemployed. Her health is failing, and earlier this year, she was going to dialysis several times a week. Still, she remains resolute. “If they do, it doesn’t mean we stop,” she said of a possible Supreme Court defeat. “We keep going in different avenues until we can achieve our final goal.”
She added, “If you’re part of the human race, you should have the same rights as everybody else.” But the Supreme Court—now packed with right-wing conservatives and bolstered by the Trump administration and the right-wing religious movement—may have its own ideas about who deserves basic rights.