How LGBTQ+ rights in America could change forever this week

Today, in America, less than half of the 50 states have laws that ban discrimination based on sexual orientation or gender identity. In other words, in most of the country – despite the fact that there is national same-sex marriage equality – you can still get fired from your job for being LGBTQ+.

Tomorrow, this could – hopefully – begin to change. October 8 will see three landmark cases debated in the US Supreme Court. Two of the cases involve men who claim that they were fired for being gay and one involves a trans woman who says that she was fired after declaring her intent to transition.

Aimee Stephens, the trans woman in the third case, said in a statement: “It would be nice if our rights were formally protected, that we have the same basic human rights as everyone else. We are not asking for anything special.”

If the Supreme Court rule in favour of the employees it would lead to a dramatic change in US employment law, meaning that for the first time in history, LGBTQ+ people would finally be protected in the workplace across America.

Here’s everything you need to know about the hearings.

WHY CAN YOU STILL GET FIRED FOR BEING LGBTQ+ IN AMERICA?

Well, exactly. Under US law, the Civil Rights Act of 1964 protects Americans from discrimination in the grounds of race, color, religion, sex and national origin. The problem is, there is an ambiguity around what “sex” covers. Does it simply cover gender? Or does it cover sexual orientation and gender identity? LGBTQ+ rights activists would argue that it should cover all of the above.

Title VII is the part of the Civil Rights Act which bans employment discrimination, and Trump’s Justice Department, as well as the employers in the cases being heard this week, have argued that Congress never intended for the Title to protect LGBTQ+ people – and furthermore, that it shouldn’t. Religious groups and Republican-led states have supported this viewpoint.

As archaic and fundamentally inhumane as this may seem, it makes sense given Trump’s track record on LGBTQ+ rights. Since he was elected, he has executed a systematic campaign against trans people in America. In February, 2017 he rolled back the rights of US students to use the bathroom that corresponds with their lived gender, before attempting to ban trans people from the U.S. military in July, 2017. In October, 2018 he proposed to redefine gender as fixed and immovable, taking away trans people’s right to legally change their gender, and then, in May of this year, tried to rescind healthcare rights for trans people, including a rule that would allow healthcare workers to refuse to treat trans people on religious grounds.

The Guardian is calling the fight against employment protections “Trump’s most aggressive anti-gay legal argument yet.” It reports that the existent laws in place in America to protect LGBTQ+ people in the workplace are not only scarce but totally inadequate and rarely enforced. If the Supreme Court rule in favour of the Trump Administration, they could be nonexistent.

WHO ARE THE PEOPLE FIGHTING FOR THEIR RIGHTS?

There are three cases being heard in Washington before the nine judges of the Supreme Court tomorrow. 

Altitude Express Inc. v Zarda involves New York skydiving instructor Donald Zarda, who claims he was fired for being gay (he has since passed away, and the court will hear from his estate). Bostock v. Clayton County will hear from former county child welfare services coordinator Gerald Bostock, who sued the county after he was fired from his job, claiming discrimination based on sexual orientation.

The third case is called R.G. & G.R. Harris Funeral Homes v. EEOC & Aimee Stephens. According to reports, Stephens was fired from her job at a funeral home after six years of employment, when she informed her boss that she was transitioning in 2013. With her job, she lost her income and her health insurance. One of her employers is Chase Strangio, deputy director for transgender justice at the ACLU and the powerhouse attorney representing Stephens.

In an article for The Washington Post, Strangio, who is also transgender, wrote: “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.”

“If we are here and we exist we should have civil rights in the United States of America” – Laverne Cox

While Zarda, Bostock and Stephens have decided to take up their cases locally and at the Supreme Court level, they are by no means alone in experiencing discrimination in the workplace. A 2017 study found that twenty per cent of LGBTQ+ Americans felt that they had experienced discrimination based on sexual orientation or gender identity when applying for jobs.

According to the National Centre for Transgender Justice in America, more than one in four transgender people have lost their job due to bias. According to The American Association for Justice, almost half of all respondents in their survey – that’s 47 per cent – had “faced discrimination in hiring, promotion, or job retention.” On top of this, even finding employment to start with can feel impossible for trans people: the unemployment rate for trans people in the US is three times the national average and four times for trans people of colour. 

Laverne Cox, Chella Man, Princess Nokia and Peppermint are among the celebrities backing the employees. Cox told MSNBC on Sunday: “I am here, I exist, transgender people have existed since the beginning of time, and if we are here and we exist we should have civil rights in the United States of America.” 

WHAT KIND OF CHANGE COULD THE CASES BRING ABOUT?

The results of this week’s hearings will not be revealed immediately, but a decision is expected to be given in the spring or summer of 2020.

If the court rules in favour of the employees, the federal ruling would supersede state laws and mean that LGBTQ+ people country-wide would be protected from bias in the workplace on the grounds of sexual orientation or gender identity. 

However, after the retirement of Justice Anthony M. Kennedy, who helped to push same-sex marriage through the Supreme Court in 2015, and after Trump has managed to get conservatives Brett Kavanagh and Neil Gorsuch onto the bench, things are not looking too optimistic. Worryingly, the court now has a five to four conservative majority. 

“Transgender people can live only if we can be who we are – that is, our existence depends on our ability to live consistent with the sex with which we identify,” wrote Strangio in The Washington Post. “Our physical presence in court is a testament to that truth. When the justices see us sitting before them, they will have to contend with the reality that we have declared our truth and are not going back.”