LGBT Americans look to Supreme Court after being fired, 'because of sex'

By Devin Dwyer

When Aimee Stephens went to work as an openly-transgender woman -- a gutsy but liberating decision to reveal her true self -- she lost her job.

The Supreme Court on Tuesday will consider whether Stephens and thousands of transgender Americans are protected from employment discrimination under the Title VII of the 1964 Civil Rights Act, which bars employers from terminating workers because of sex.

The court will also hear cases involving a Georgia child welfare services official and a New York skydiving instructor who each allege they were fired because they are gay.

"It would be nice to have our rights finally protected, that we have the same basic human rights as everyone else does," said Stephens, a transgender Michigan woman who was fired from R.G. & G.R. Harris Funeral Home, where she had worked as a funeral director for nearly six years, after coming out.

Charles William Kelly

Aimee Stephens was fired from her job as a funeral director at R.G. & G.R. Harris Funeral Homes after she informed her employer that she is transgender.

The funeral home says Stephens was fired for not complying with the dress code for men, even though she was dressed professionally as a woman.

"If Stephens had wanted to dress in a different way not on company time, that was fine. But as long as anybody was at work, this [company dress code] applied to all employees -- male or female," said John Bursch, attorney for Alliance Defending Freedom, a faith-based advocacy group that has opposed LGBT legal protections and represents Harris Funeral Home.

"It has the effect of making sure the clients at the funeral home can process their grief and not ever be focused on the funeral home or its employees," Bursch said.

"This is the most consequential case for LGBT civil rights Supreme Court will hear in my lifetime," @LaverneCox tells me. "If you discriminate against a trans person because they’re transgender, that's de facto discrimination on basis of sex." @ABCNewsLive https://t.co/olapxQrh40 pic.twitter.com/VjY7fJE5wT

— Devin Dwyer (@devindwyer) October 7, 2019

Two lower federal courts sided with Stephens, calling her firing "impermissible discrimination."

The Trump administration, which is not a party in the case, took the step of asking the Supreme Court to reverse the decision.

"Proving discrimination because of sex under Title VII requires showing that an employer treated members of one sex less favorably than similarly situated members of the other sex," Solicitor General Noel Francisco argues in court documents.

"Treating all transgender persons less favorably than non-transgender persons does not violate that rule," Francisco wrote.

Zarda Estate

Donald Zarda, seen here with his partner Bill Moore, was fired in 2010 by Altitude Express, Inc., after telling a customer that he was gay.

Donald Zarda, a New York skydiving instructor, was fired in 2010 after telling a female client who was strapped to him for a jump not to worry about the close contact because he was "100 percent gay."

The company maintains in court documents that Zarda was fired, not because of his sexual orientation, but because he shared inappropriate personal information thereby failing to "serve clients with excellence."

A federal appeals court sided with Zarda.

"Such discrimination is inextricably tied to the belief, which is objectively false for millions of Americans, that men should be attracted only to women and that women should be attracted only to men," wrote Chief Judge Robert Katzmann of the 2nd Circuit U.S. Court of Appeals. "That stereotype has nothing to do with a worker's capacity to do the job."

via Gerald Bostock

Gerald Bostock, a former Clayton County, Ga., child welfare services official says he was fired from his job because he is gay.

In the case of Gerald Bostock, a Georgia child welfare services coordinator, lower federal courts saw things differently.

In 2013, after Bostock joined a gay softball league in Atlanta, publicly revealing his sexual orientation, he was suddenly subjected to an audit and accused of mismanagement of state funds after a decade of exemplary service. His employer, Clayton County, later dismissed him for "conduct unbecoming of a county employee."

Bostock denies any wrongdoing. The county insists that Bostock's sexual orientation was not a motivating factor in the audit or his firing. The U.S. Court of Appeals for the 11th Circuit said that even if it was a factor that Title VII of the Civil Rights Act does not apply.

"The original public meaning of 'sex' in 1964 was being male or female. This public meaning remains the same today," the county argues in its brief to the Supreme Court. "Sexual orientation, on the other hand, refers to one's sexual preference, and homosexuality refers to one's attraction to one's own sex."

"No one in this country willing and able to work should go to work fearful of losing a job because of who they are, how they identify, or who they love. Simply wrong, plain and simple." Gerald Bostock, plaintiff in #SCOTUS discrimination case @abcnewslive https://t.co/3J25XaswLo pic.twitter.com/8Zwf5EhSSg

— Devin Dwyer (@devindwyer) October 7, 2019

The three cases, among the most high-profile of the Supreme Court's new term, could enshrine employment discrimination protections for gay, lesbian and transgender Americans under existing law. A decision favoring the employers could leave those workers exposed, adding pressure on Congress to revise the law.

An estimated 11 million Americans -- or 4.5% -- identify as lesbian, gay, bisexual or transgender, according to the Williams Institute. Nearly 90% are employed.

Twenty-one states, plus the District of Columbia, have laws explicitly prohibiting workplace discrimination based on sexual orientation and gender identity, according to the Movement Advancement Project, an independent think tank. Thirty states do not.

The National LGBTQ Workers Center says research shows a quarter of the workforce reported experiencing discrimination in the past year -- half of which said the discrimination negatively impacted their work environment.

Zarda Estate

Donald Zarda, seen here in an undated photo, died in a base jumping accident in October 2014.

"In 20 years, it's going to be pretty inconceivable socially that employment discrimination against gays and lesbians is legal. But we are in a transitional period," said Tom Goldstein, a constitutional lawyer and co-founder of SCOTUSblog.

"The plaintiffs' best hope is to suggest to the Chief Justice [John Roberts] and Justice Brett Kavanaugh that they are going to be on the wrong side of history on this question," he said. "But it is unquestionably an uphill climb."

Goldstein said that if the court sides with the employers, the opinion is likely to be modest and narrow, giving a nod to rapidly changing public opinion on gay rights.

More than three dozen high-profile Republicans urged the court in a friend-of-the-court filing to take a "common sense, textualist approach," arguing that sexual orientation and gender identity -- at their core -- hinge on sex and should be protected.

Dozens of American business giants, including Amazon.com, Microsoft, Macy's, Nike and American Airlines have also weighed in, asking the justices to affirm discrimination protections for LGBT workers because it's good for the U.S. economy. The Walt Disney Company, parent company of ABC News, also signed on to the brief, which was joined by more than 200 companies representing more than 7 million employees.

"The stakes could not be higher," said Ria Mar, an attorney with the ACLU's Lesbian, Gay, Bisexual and Transgender project. "The potential upside, however, is that the court could send a very powerful message about the status of LGBT people in this country and by not relegating us to second-class status."

Bursch, attorney for Harris Funeral Homes, said the cases are about adherence to federal law -- as written.

"The Title VII statute that prohibits discrimination because of sex has been interpreted by the federal government and the U.S. Supreme Court for more than half a century as requiring that women can't be treated less favorably than men because of their sex," said Bursch. "If a court rewrites that to add other classifications, then they've done something that a court should never do, which is impose their own policy preferences on people who were just acting in accordance with the law."

Stephens, who has been out of work since December 2014 because of health issues, says she is hopeful for a good outcome.

"We're not asking for anything special, just the same," Stephens said.