By Mary Emily O'Hara
On Tuesday (October 8), the Supreme Court heard arguments in a series of landmark LGBTQ+ equality cases. Attorneys for three LGBTQ+ plaintiffs — Aimee Stephens, Donald Zarda, and Gerald Bostock — argued before the nation’s highest court that their clients should not have been fired from their jobs for being LGBTQ+.
Currently, federal civil rights law bans discrimination based on sex. But while lower courts have determined several times that “sex” includes sexual orientation and gender identity, the law does not explicitly spell that out. Because fewer than half of U.S. states have laws banning anti-LGBTQ+ discrimination, LGBTQ+ people in most of the country are still vulnerable to being fired from their jobs, denied housing, kicked out of restaurants, and more with no legal recourse.
The Supreme Court’s decision in all three cases could impact employment rights for some of the nation’s most vulnerable populations. It will especially affect the nation’s 1.4 million transgender people, who are three times more likely to be unemployed and frequently report being fired from jobs due to their gender identity, according to a 2015 survey out of the National Center for Transgender Equality.
“Today, nine Supreme Court Justices will have the basic rights of every LGBTQ+ American in their hands,” Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement emailed to MTV News on Tuesday. “For many trans people, this may be an alarming prospect. Some of these Justices have a worldview that doesn’t include transgender people at all. But after 20 years of working to fulfill the dream of transgender equality, I can tell you that we have never had a better chance to make our dream a reality.”
Actress Laverne Cox (Orange Is the New Black) was a guest of the ACLU and posted an Instagram video after the arguments concluded, saying she felt “overwhelmed” to be present at the first-ever transgender rights case to be argued before the Supreme Court.
Action also took place outside the court, where LGBTQ+ advocates and transphobic counter-protesters clashed; police also closed off streets for a brief period of time after finding two suspicious packages at an intersection near the court. Capitol Police resolved the issue by 10 a.m., allowing the rally to continue.
The main rally kicked off with clergy members and faith leaders from Muslim, Jewish, and Christian traditions, who sang “This Little Light of Mine.” LaLa Zannell, manager of the ACLU’s Trans Justice Campaign, was the first speaker and joked with the crowd about how she never gets up at dawn and that she would be careful not to curse into the mic because her mother is a pastor.
“This ain’t about politics today, the legal team handles that inside,” Zannell said. “The world needs to see our hearts and our souls. That we love just like everyone else. We deserve to work just like everyone else. And oh yes — we can vote your beep [sic] out just like anybody else.”
JoDee Winterhof, the senior vice president for policy and political affairs at the Human Rights Campaign, told the crowd that the cases before the Supreme Court “illustrate the type of discrimination that thousands of LGBTQ+ people face every day in this country.” In 29 states, there are no laws preventing discrimination based on sexual orientation or gender identity; with no explicit federal protections, it is possible for a lesbian to get married on Sunday and then fired from her job on Monday, for example.
Kris Hayashi, executive director of the Transgender Law Center, challenged the court’s justices, saying if they decide to allow employment discrimination against LGBTQ+ people, they will be “under Trump’s thumb,” since the Trump administration not only argues that sexual orientations should not be considered a protected class, but also has championed anti-LGBTQ+ legislation.
Hayashi also said that the arguments represented a moment for “particularly black and brown trans people to show the strength of the movements we have built,” noting his own 20-plus years working with LGBTQ+ advocacy groups.
Activist and advocate Ashlee Marie Preston agreed. “We cannot continue pretending that whenever our rights are rolled back, Black trans women are not the first to be impacted by these decisions,” she said when she spoke. Preston spoke about her own past experience being fired from a job because of gender identity discrimination; she experienced homelessness, turned to survival sex work, and used drugs following her former employer’s discrimination against her. She is hardly alone; according to the National Center for Transgender Equality survey, one-third of trans Americans have experienced homelessness, while 12 percent report having done sex work at some point in their lives in order to have an income.
“We are here to take back our dignity. We are here to take back our respect. We are here to take back our lives,” Preston said, to the crowd’s great applause. “If your feminism does not include black trans women, it is trash.”
The court’s current makeup does not bode well for LGBTQ+ advocates, given that Trump has appointed two conservative justices to the court, thereby cementing a lean towards the right. According to transcripts released just hours after the arguments concluded, the court appeared divided in both the Bostock case and the Aimee Stephens case. Justice Samuel Alito told attorneys for the LGBTQ+ employees that they are “trying to change the meaning of what Congress understood sex to mean in 1964” when it passed the federal Civil Rights Act. Trump-appointed Justice Neil Gorsuch claimed that a ruling to protect workers from discriminatory employers could cause “massive social upheaval,” but also said that protecting LGBTQ+ rights should be a “legislative decision.” Such a legislative decision has been pursued for years in Congress through the introduction and reintroduction of the Equality Act, a law that would add sexual orientation and gender identity to federal civil rights law — but has yet to be approved by the Senate.
Gregory Nevins, the senior counsel and employment fairness project director for Lambda Legal, said in a statement emailed to MTV News that “we are hopeful and there are many reasons to be optimistic” after hearing comments from the Supreme Court justices. “We need the Court to clarify once and for all that discrimination against LGBTQ workers is unlawful sex discrimination so that people everywhere can bring their whole selves to work and not be forced to hide,” Nevins said. “If they just follow the text of the law that should be fairly easy.”
The court steps weren’t the only place to see rallies on Tuesday. In New York City, First Lady Chirlane McCray, who has described herself as sexually fluid, led a coalition of LGBTQ+ advocacy groups and the New York City Council in a protest at City Hall in solidarity with those on the ground in Washington, D.C. And for those located in other parts of the country, a virtual town hall hosted by a coalition of advocacy groups and attorneys in the case will take place Tuesday night at 8 p.m. Attendees can sign up online.
But another side of America was also on display next to the LGBTQ+ advocates fighting for workplace equality. At a second rally near the court steps in Washington, D.C., transphobic counter-protesters held signs reading #SexNotGender and “protect fairness for women,” thereby ignoring transgender women’s agency as women. In a video captured by ABC News, speakers railed against transgender people and argued that business owners should be allowed to “run their businesses in the way that they see fit,” which ostensibly includes discriminating against LGBTQ+ employees and firing them.
That crowd was largely drowned out by singing, as the Gay Men’s Chorus of Washington, D.C., stood in the middle of the anti-trans rally and belted out the Star-Spangled Banner among other numbers. LGBTQ+ advocates continually shouted over the counter-protest speakers, chanting “trans women are women” as a refutation to some transphobic counter-protester's t-shirts.
Later in the day, activists from ACT Up Philly and the HIV/AIDS nonprofit Housing Works staged a sit-in on the street, blocking traffic in an act of civil disobedience. On Twitter, the Washington Blade’s Michael K. Lavers and Out’s Phillip Picardi reported that capitol police had begun arresting protesters and dragging them into booking vans. Those remaining seated pumped their fists in the air and chanted, “No fear, no hate, no license to discriminate.” According to Housing Works, over 500 people participated in the civil disobedience, and at least 133 people were arrested.
After hearing today’s arguments, the Supreme Court’s nine justices will determine whether or not the federal ban on sex discrimination in employment effectively bans anti-LGBTQ+ discrimination at large. That decision is likely to be announced in late spring — and no matter what the final ruling, will have a major impact on LGBTQ+ people’s safety, and their right to self-determination.