Aimee Stephens worked for R.G. & G.R. Harris Funeral Home for six years before beginning her gender transition. Then serving as funeral director and embalmer, she wrote a letter on July 31, 2013, to her employers to share that she would begin wearing appropriate women’s business attire at work. They decided that was unacceptable, and they fired Stephens.
Represented by the Equal Employment Opportunity Commission, Stephens fought back, arguing that firing her because she didn’t conform to her employers’ gender-based stereotype violated Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination. She lost in federal district court in Detroit, but won at the Sixth Circuit Court of Appeals, which covers Michigan, Ohio, Kentucky, and Tennessee.
Stephen’s case was a major first—the first time that the EEOC sued an employer on behalf of a transgender plaintiff and asserted that gender identity discrimination is sex discrimination. Her win made history. Which is why conservatives (backed by 16 states) are lining up to try to get the Supreme Court to reverse it.
Led by Nebraska, a group of 16 hyper-conservative attorneys general are asking the Supreme Court to reject the Sixth Circuit’s reasoning, calling it an “egregious error.”
The States’ purpose is to note that “sex” under the plain terms of Title VII does not mean anything other than biological status. Unless and until Congress affirmatively acts, our Constitution leaves to the States the authority to determine which protections, or not, should flow to individuals based on gender identity
The other culprit states? Alabama, Arkansas, Kansas, Kentucky, Louisiana, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.
The AGs have made no effort to make their argument seem anything but openly hostile to LGBT people. They’ll no doubt be joined by Trump’s Justice Department, which has until September 24 to weigh in as to whether the Supreme Court should hear the case. Under Trump, DOJ has maintained that “sex” doesn’t cover gender identity or sexual orientation. And, of course, DOJ can block the EEOC from participating in the Supreme Court case, should the court decide to hear the appeal.
Civil rights proponents, including LBGT rights activists, are attempting to avoid showdowns. It’s no wonder. Republicans are rushing to confirm Trump’s second SCOTUS nominee, the ignoble Brett Kavanaugh. Preceded by hatemonger Neil Gorsuch, whose 2017 dissent in a same-sex adoption case could induce nausea in the sturdiest of rational jurists, Kavanaugh would be (supremely) unlikely to find LGBT people are protected against discrimination by federal law. And we’ve got quite a few momentous LGBT rights cases coming down the pike already.
There’s Pidgeon v. Turner, a Texas-born effort to get courts to find that the right to marriage doesn’t confer the rights that normally come with marriage, i.e., benefits, coming up through state courts. It’s been rejected once already by the Supreme Court, but the issue’s far from dead. Then there’s the litigation around Trump’s transgender troop ban and the looming possibility of a Masterpiece Cakeshop rematch. Finally, there’s hate group Alliance Defending Freedom’s effort to get the Supreme Court to reverse a ruling from the Third Circuit—that’s Pennsylvania, Delaware, and New Jersey, plus the Virgin Islands—upholding a school district’s trans-inclusive bathroom policy.
This is all to say that LGBT folks represent another 13 million reasons why it’s critical to keep Kavanaugh off the court.
