Vargas: Why you should care about Aimee Stephens

Aimee Stephens worked as a funeral director and embalmer at R.G. & G.R. Harris Funeral Homes in Michigan from 2008 to 2013.

By all accounts, she was a model employee, friendly and respectful to clients, and never disciplined by the owner. In 2013, Aimee, who was presenting as a man at the time, informed the owner that she intended to transition and present as female. The funeral home’s owner, Thomas Rost, then terminated her, citing his own religious objections to her transition. Aimee sued claiming she was discriminated against because of her sex and gender identity.

Today, the Supreme Court heard oral arguments in Aimee’s case, one of three cases currently on the high court’s docket testing whether Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation and gender identity.

While the statute does not explicitly include these types of discrimination, a series of lower court cases (and a growing consensus among legal scholars) have found that the statute’s prohibition on sex discrimination encompasses both sexual orientation and gender identity. The Supreme Court will now take up the question, in a set of cases that will either expand LGBTQ employment protections nationwide, or dramatically curtail those protections. But these cases also have dramatically broader implications for every American.

What’s at stake for the LGBTQ community

Despite dramatic improvements in social acceptance, LGBTQ discrimination in the workplace remains a serious problem.

In the United States, 43% of LGBTQ employees reported harassment or discrimination based on their sexual orientation, while 77% of transgender employees, specifically, reported having to take active steps to avoid discrimination, such as delaying their transition. Twenty-one percent of LGBTQ workers believed they were denied promotion or fired because of their gender identity or sexual orientation, making it unsurprising that almost half of LGBTQ Americans choose not to “come out” in their workplace. According to studies by the Williams Institute in Georgia, Florida and Texas, this discrimination results in hundreds of millions of dollars in lost productivity.

Currently, only 21 states have broad anti-discrimination protection for LGBTQ employees, with a few more having protections for either sexual orientation or gender identity. Federal employees are protected from discrimination by two opinions issued by the Equal Employment Opportunity Commission (EEOC). Employees of federal contractors were protected by executive order under President Barack Obama, an order that has since been withdrawn by President Donald Trump. The Equality Act, national legislation designed to resolve this patchwork approach and afford protection for LGBTQ employees nationwide, remains stalled in the Senate after passing the House.

Against this backdrop, a new solidly conservative Supreme Court will take up the question of LGBTQ rights for the first time in the post-Kennedy era.

Since 2003, Justice Anthony Kennedy had served as the court’s swing vote on LGBTQ rights cases, building that legacy, in large part, on his expansive (if sometimes rambling) majority opinions in Lawrence v. Texas, decriminalizing same-sex sexual intercourse, United States v. Windsor, overturning the Defense of Marriage Act, and Obergefell v. Hodges, legalizing same-sex marriage nationwide. When the far more conservative Justice Brett Kavanaugh replaced Justice Kennedy, many LGBTQ activists and scholars believed that LGBTQ rights would be first on the chopping block, and in 2018 the Court quietly signaled it was open to such challenges.

Yes, this case is about sex

In any other context, Aimee would have a slam-dunk case, a statement that may be surprising to many non-legal observers. Over the past three decades, the U.S. Courts of Appeal have come to a consensus that the Civil Rights Act bars discrimination based on an employee’s gender identity.

This is because discrimination against a transgender person is always based on the fact that their dress or behavior does not conform to the observer’s expectations about how men and women should dress or behave. In 1989, the Supreme Court held that discrimination based on these “gender stereotypes” was barred by the Civil Rights Act in a case called PriceWaterhouse v. Hopkins.

The two other cases before the court today, Bostock and Zarda, address whether sexual orientation discrimination is covered by Title VII. Similar cases have enjoyed far less success in the lower courts than transgender discrimination cases until recently. At least part of the reason for this was that many judges feared that holding in favor of gay and lesbian plaintiffs might “bootstrap” sexual orientation into the Civil Rights Act when that was clearly not the intent of Congress. As a result, courts often overcompensated, refusing to rule in favor of gay and lesbian plaintiffs, even when there was a clear case of sex discrimination.

The tide shifted in 2015, when the EEOC ruled that sexual orientation discrimination was analogous to sex discrimination. Since then, the Seventh and Second Circuit Courts of Appeals have come to the same conclusion. In Altitude Express v. Zarda, the Second Circuit grounded its decision in favor of a gay skydiving instructor who was terminated for telling a client he was gay in three separate lines of Title VII precedents.

First, the court held that sexual orientation discrimination was sex discrimination per se. In the words of the court, “because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex.”

Second, the court held that sexual orientation discrimination involved prohibited “gender stereotyping,” reasoning that “the gender stereotype at work here is that ‘real’ men should date women” making gay men “the ultimate case of failure to conform.”

Finally, the court observed that sexual orientation discrimination was analogous to discrimination against mixed race couples, stating, “the employer’s decision is predicated on opposition to romantic associations between particular sexes,” and is thus as suspect as opposition to romantic associations between particular races. This was an argument Professor Stephen Befort and I made back in 2015 in the Santa Clara Law Review, and I’m pleased to see that it has made its way into these decisions.

In short, discrimination against LGBTQ people is about sex. It’s about the sex of our partners, how we express our gender, the gendered clothes we choose to wear, the gender roles we disrupt, and when we transition from one sex to another.

It’s about sex. It’s always been about sex, which is why discrimination against LGBTQ people looks a whole lot like discrimination against women. In fact, discrimination against LGBTQ people and women is so closely related that a decision against the LGBTQ plaintiffs here will probably end up hurting women too.

The Department of Justice is also going after women’s rights

While these cases have enormous implications for the LGBTQ community in particular, the impact of these cases will undoubtedly be far broader.

It should come as no surprise to anyone that Trump’s Department of Justice is arguing against the LGBTQ community in these cases, relying on all of the discredited arguments proffered against the plaintiffs in Zarda. What you may not know is that the attorney general is also asking the justices to scale back sex discrimination protections more generally, challenging the 30-year-old precedent in Hopkins that mandating gender stereotypes is improper.

This reactionary argument is extremely dangerous and would undo important protections for all men and women. Forty-two percent of women have experienced some form of discrimination in the workplace, and the EEOC reports that nearly 24,500 sex discrimination complaints were filed in 2018 alone.

Differing treatment of women is often rooted in stereotypes about women’s ability or proper roles, and studies have shown that pay discrimination in particular is often the result of less value being placed on “women’s work” or assumptions about women’s competence. But this issue is not limited to women. Men also face discrimination for their failure to conform to certain masculine stereotypes, which can result in harassment and lower pay.

The elimination or narrowing of Hopkins would, therefore, also hurt heterosexual women and men, who would find themselves with no legal recourse when they too are punished for failure to conform to sex stereotypes. The Trump administration would have us go back to the days when women could be fired for wearing pants and being too assertive, and men would be fired for having a pierced ear or not acting “man enough” (yes, these situations have all been litigated).

“Religious liberty” and racial purity

An adverse decision in the trio of LGBTQ rights cases could also limit the scope of racial discrimination cases under Title VII. One of the core arguments in Zarda is that discrimination against a person because of the sex of their partner is analogous to discrimination against someone because of the race of their partner. Discrimination against an employee because of the race of their partner is called relational discrimination, and courts universally agree that it is prohibited by the Civil Rights Act.

If the Supreme Court were to overturn Zarda, it would call this long held legal position into doubt, potentially creating a loophole in race discrimination law that would allow discrimination against mixed race couples and their children.

Furthermore, though the justices declined to address the issue of religious freedom to discriminate in this case, a number of cases involving bakeries and flower shops refusing to serve LGBTQ customers remain in the lower courts. If the Supreme Court creates a “religious freedom” exception to anti-discrimination laws, it is only a matter of time before that exception is used against racial minorities as well. In fact, it’s already happening.

So whether you identify as LGBTQ or not, you should care about Aimee Stephens.

Her case and the two other LGBTQ rights cases before the Supreme Court today are perhaps the most important employment discrimination cases of the past 30 years. They are important not only because they will be a bellwether of things to come on LGBTQ rights, but because the shockingly reactionary position of LGTBQ rights opponents in these cases, including the Department of Justice, is also a direct challenge to the rights of women (and men) and racial minorities.

The court’s decision will impact the rights of every American. You should care about Aimee Stephens because she’s fighting for your rights just as much as she’s fighting for her own.

After court on Tuesday, Aimee Stephens approached a podium at the bottom of the Supreme Court steps to the sound of dozens of people chanting her name.

“Aimee!  Aimee!  Aimee!  Aimee!”

She stood up from her wheelchair, took a microphone, and thanked pro LGBTQ protesters.

“Because of you we’re doing what we’re doing. And we appreciate all your support.”

San José Spotlight Washington contributor Elizabeth Mendez contributed to this report.

Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara University Law School. Vargas also chairs the American Bar Association’s committee on Business Law Education and serves on the executive board of the Santa Clara County Democratic Party, and on the boards of BAYMEC and the Rainbow Chamber of Commerce.