“An employer who fires an individual merely for being gay or transgender defies the law,” wrote Supreme Court Justice Neil Gorsuch in his majority opinion on Monday. “It is so ordered.” And with that, during Pride Month, the nation’s highest court delivered a surprising but necessary blow to the Trump administration’s efforts to erase basic workplace protections afforded to lesbian, bisexual, gay, queer, transgender, nonbinary, and gender-nonconforming individuals under law.
In a six to three vote, the conservative court’s ruling affirms that Title VII of the Civil Rights Act of 1964 — which bars employment discrimination based on race, religion, national origin, and sex — applies to LGBTQ workers. The government, under President Donald Trump and on behalf of the religious right, has waged consistent war against already imperiled trans lives, often with the aid of Supreme Court’s conservative justices. Monday’s rightful landmark decision was thus far from expected. Its significance cannot be overstated.
The government, under President Donald Trump and on behalf of the religious right, has waged consistent war against already imperiled trans lives.
“We won because so many people changed the world by existing,” wrote American Civil Liberties Union attorney Chase Strangio, on Twitter, soon after learning of the court’s decision. Strangio worked on one of the cases covered in the ruling, representing Aimee Stephens, who was fired from her job at a suburban Detroit funeral home after coming out as a trans woman to her employer. Stephens died just last month, at the age of 59, from complications of kidney failure.
The court’s decision applies to two historic cases concerning the protections of LGBTQ workers. In each case, the government was aiming, with a most cynical and twisted application of legal logic, to decimate the standards of sex discrimination law. The fact that even the right-wing Gorsuch ruled against the Trump administration speaks to the infirmity of the government’s arguments.
The first case concerned Stephens’s firing; the second related to two suits filed by gay men who were fired after their sexual orientation became known to their employers. In both instances, the issue before the court was statutory, rather than constitutional: a question of interpreting the 1964 Civil Rights Act. Or, more accurately, the cases were about how far the government was willing to go to misconstrue and twist the meaning of Title VII protections, by arguing that discrimination “because of sex” does not include discrimination based on sexual orientation or gender identity.
The administration’s line here flew in the face of decades of case law, which recognized anti-LGBTQ discrimination as a form of sex discrimination. As Strangio said last year, at the time the cases’ oral arguments went before the court, it is “intuitive” to situate trans protections in the legal framework of sex discrimination because “you can’t actually describe a trans-ness without thinking about sex as a category.” It is undeniable that firing someone because they are LGBTQ is a decision made on assumptions about the way individuals belonging to a presumed, given sex are expected to live and behave.
The government’s response was to argue for more discrimination. That is, they posited that an employer does not violate Title VII protections so long as they discriminate across the board — for example, firing a gender-nonconforming woman as readily as they would fire a gender-nonconforming man. With regards to homophobic discrimination, the Justice Department stated, “An employer who discriminates against employees in same-sex relationships thus does not violate Title VII as long as it treats men in same-sex relationships the same as women in same-sex relationships.”
Monday’s ruling makes clear: This crass logic holds no legal weight. If it had gone the other way, advocates were readying for a fight to get specific LGBTQ protections passed on Capitol Hill. But Congress does not need to pass another federal law to affirm protections for LGBTQ workers: They are covered by Title VII as it stands.
The court’s decision, however, does not mean that LGBTQ and, more specifically, trans rights are assured. We have seen this just in the past week, amid other attempts by the administration to roll back trans rights.
The Supreme Court ruling came on the heels of new regulations put forward by the Trump administration that aim to roll back Obama-era health care protections for trans people. Using the same logic that the Supreme Court just obviated, the Department of Health and Human Services said that it would only recognize “sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.” Announced on the anniversary of the 2016 Pulse nightclub massacre, the new rules served as yet another chilling threat to trans lives.
Yet, in terms of legality, Strangio said that Monday’s Supreme Court decision essentially voids the administration’s efforts to discriminate using these sorts of regulations. He noted on Twitter that the new rules are “based on an interpretation of sex under federal law,” and that “the courts decide not Trump. Today the highest court just decided.”
There should be no doubt, however, that anti-trans discrimination and violence remain firmly embedded in American life. Transgender individuals experience unemployment at a rate three times higher than that of the cisgender population; for trans people of color, the rate is four times higher. Trans women of color face no less than an epidemic of deadly brutality. The court’s decision to uphold civil rights law Monday — crucial as it is — does not end that.
Last week alone, two black trans women were murdered: Riah Milton in Liberty Township, Ohio, and Dominique “Rem’mie” Fells in Philadelphia. They are believed to be the 13th and 14th transgender or gender-nonconforming murder victims in the U.S. this year, although that is certainly an undercount. Federal law enforcement has recorded a spike in hate crimes relating to gender identity in the Trump era.
“Black trans lives matter. My sister’s life mattered. All of the loved ones we have lost, all of these beautiful girls that we have lost. Their lives matter.”
As protesters continue to fill the streets of cities and towns with righteous anti-racist, anti-policing marches and rallies, it cannot be forgotten that trans people are seven times more likely to experience physical violence when interacting with the police than non-trans people. According to a 2011 report from the National Center for Transgender Equality, nearly half of all Black transgender people have been incarcerated.
The state commits and sanctions an obscene degree of violence against trans and gender-nonconforming communities of color. New video released last week, on the anniversary of Layleen Polanco’s death on Rikers Island, revealed that the trans woman, who was held in solitary confinement on minor charges because she could not afford $500 bail, was left to die by prison staff. Polanco died of an epileptic seizure; Rikers staffers, who waited over an hour and a half before calling for medical help, were not found to be criminally responsible.
On Sunday, over 15,000 people filled the expansive plaza and roadway in front of the Brooklyn Museum for New York’s Black Trans Lives Matter rally. Participants wore white; the crowd dazzled in the bright afternoon sun. Polanco’s smiling face was held high on numerous homemade posters. Her sister, Melanie Brown, spoke to the rally. “Black trans lives matter,” she said. “My sister’s life mattered. All of the loved ones we have lost, all of these beautiful girls that we have lost. Their lives matter. We have to protect them.”
As Strangio said of Monday’s Supreme Court victory, “We won because Black and Brown trans people fought and died for us to live and fight.”