By Jackie Brant
TW: Homophobia and Transphobia
The Supreme Court is in the process of hearing three different cases from New York, Georgia, and Michigan that will decide the future of LGBTQ+ rights in the workplace. Two of the three cases have been combined because both plaintiffs were fired immediately after coming out as gay in their workplace; the third case involves a transgender woman who was fired immediately after coming out to her superiors and informing them that she would be transitioning in the future.
Despite the differences in the cases, all three claim that being fired on the basis of sexuality or gender identity violates the rights guaranteed to the plaintiffs by Title VII of the Civil Rights Act of 1964 and constitutes discrimination on the basis of sex. The main counterargument against this claim is that the original drafters of the act and the people who voted to pass it did not intend “sex” to include sexuality or gender identity.
As it currently stands, only 21 states have state-level workplace discrimination protections in place for members of the LGBTQ+ community. In over half of the states that do not have such protections in place, workers are allowed to marry their same-sex partners, but can also be fired on the basis of their sexuality or gender identity.
The outcome of these Supreme Court cases will be massively consequential. They will decide whether or not LGBTQ+ people can exist in a workplace environment, have equal access to job opportunities, and, ultimately, whether or not they can even make a living at all. This is especially important when considering how LGBTQ+ people — youths in particular — face homelessness and poverty at disproportionately high rates. Forty percent of homeless youths identify as LGBTQ+ and 30 percent of clients that occupy housing programs identify as LGBTQ+. One in four LGBTQ+ individuals — 2.2 million people — report that they do not have enough food to feed their families. Furthermore, LGBTQ+ folks of color face even higher rates of discrimination and poverty; for example, the average Black trans woman makes under $10,000 a year.
If the Supreme Court rules against the plaintiffs in its upcoming decisions, it is likely that these statistics will get even worse.
For cases with such high stakes, they have drawn surprisingly little attention on this campus and at large. Since Obergefell v. Hodges in 2015, which guaranteed the right to same-sex marriage, it seems that there has been a tendency to place LGBTQ+ issues on the back burner. For years preceding Obergefell, gay marriage was the issue that gained the most press attention nation-wide. After the fight for legal gay marriage finally ended, it seems that LGBTQ+ activism has lost a lot of the attention, traction, and allyship that it developed over the years. I have literally heard people make statements like, “LGBTQ+ people can marry now — they’re equal, what else could they possibly want now?”
The reality is that the Trump administration has been actively involved in both the cases being heard this week, especially considering that several of the administration’s top lawyers have been assigned to defend the employers in these cases. The administration’s active participation in these cases is no coincidence, considering the fact that Trump himself chose an outspoken anti-LGBTQ+ vice president. Mike Pence has openly advocated for conversion therapy, voted against the Employment Non-Discrimination Act in 2007, and voted against the “Don’t Ask, Don’t Tell” repeal in 2010. These cases are just the most recent example in a long line of blatant attempts to actively discriminate against the community.
Transphobic rhetoric and arguments that have been used in both the Supreme Court hearings and in national debate about the topic in general are proof of this continuous discrimination. Different arguments against trans rights were brought up during arguments, despite having nothing at all to do with the matter at hand.
The most prominent example of this was the continuous questions about bathroom policies. For the past several years, there has been heated national debates about whether or not trans people should be able to use their preferred bathroom. Trans people argue that it is their right to use the bathroom with which they identify, while those who disagree this policy argue that this violates the rights of cisgender people who oppose this policy. Throughout the case, the legal team for the trans woman involved in the case continued to receive numerous questions about bathroom policies from Justices, despite the team reminding Justices that the case was strictly about whether or not someone can be fired for being trans. It is no surprise that the Justices who continued to return to this question were conservative-leaning.
The Justices’ focus on bathroom policies played into deeply transphobic rhetoric, and revealed where their true concerns lie. Justice Neil Gorsuch put it best: He and the other Justices are concerned with the “massive social upheaval” that could result from making a decision in favor of the plaintiffs in these cases.
It is cruel irony that the fate of LGBTQ+ rights in the workplace now rests in the hands of Trump-appointed Justices — particularly Gorsuch, who as of now seems to be leaning in favor of the plaintiffs. This is a shocking and somewhat promising development, given that Gorsuch is a Trump appointee. The most interesting part of this Supreme Court case is how the viewpoints of the different sects of Justices have turned. Typically, the left-leaning Justices tend to be contextualists — meaning that the text of the Constitution can change with the times, and is therefore up for loose interpretation — while right-leaning Justices tend to be originalists — meaning that they interpret the Constitution as it was literally written.
If the Supreme Court decides against either — or both — of the plaintiffs in these cases, the entire LGBTQ+ community will be affected. A loss for one part of the community is a loss for the entire community, and the outcome of these cases will have effects that last for decades. Keeping in mind the particularly concerning rhetoric in the case about gender identity, it is especially important that everyone stand in solidarity with trans people.
These are difficult times for the LGBTQ+ community. Their rights are on the line for decades to come, and the validity of their identities are being debated on a public stage. Thus, Solidarity within the LGBTQ+ community and from allies outside the community is more important now than ever.