Hundreds gathered Tuesday in front of the U.S. Supreme Court to demonstrate in favor of employment protections for LGBTQ workers as the Court heard oral arguments in cases involving their workplace rights.
The demonstrators, some of whom stood a few feet from counter-demonstrators holding “God hates Pride” signs, said they came to the Court to fight for their community’s workplace protections under Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against workers on the basis of sex, race, color, national origin, and religion. Police said they arrested 133 people.
Two cases before the Roberts Court were consolidated: Zarda v. Altitude Express and Bostock v. Clayton County. These cases will consider sexual orientation as sex discrimination. The other case is Harris Funeral Homes v. EEOC, which will consider discrimination against transgender people.
Blake Flayton, a demonstrator at the Court on Tuesday morning, said the employment protections at the heart of the Supreme Court cases represent “the civil rights LGBTQ issue of our time.”
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“I think it is abhorrent that somebody could be able to let someone go from employment or deny someone employment based on their sexual orientation or gender identity that is not an issue that is religious freedom,” Flayton said during the demonstration. “I come here as a proud Jew. It’s not about religious freedom. It’s about denying civil rights and bigotry.”
Twenty-one states, the District of Columbia, and two territories explicitly prohibit employment discrimination based on sexual orientation and gender identity, which means LGBTQ people have to rely on a patchwork of laws for employment protections. Although Democrats in the U.S. House of Representatives this year passed the Equality Act, which would clarify and expand national protections for LGBTQ people under employment, housing, education, public accommodations, credit, and lending, the Republican-controlled U.S. Senate has not taken up the legislation.
Elijah Nichols told Rewire.News at the demonstration that supporting Aimee Stephens, the plaintiff in Harris Funeral Homes v. EEOC, was crucial. Stephens was fired from her job as a funeral home director in Michigan once she began transitioning at work.
“I’m from Michigan myself and grew up in West Michigan, which is considered the Bible Belt of Michigan,” Nichols said. “I knew the struggles of internalized homophobia, of systematic homophobia, and social homophobia, and I’m here to stand up for my rights and fellow queers in Michigan and to make my voice heard because it’s frankly not OK what’s happening.”
Vanessa Perry, communications associate at Network Lobby for Catholic Social Justice, said she is genuinely “fearful of my position in the world.”
“As a queer-identified woman in the workplace, I actually do have the likelihood of getting fired depending on where I work, based on my sexual identity, and that in and of itself is not OK. It does not portray who we are as a nation and as a people, and I am genuinely worried about my future in the workplace,” Perry told Rewire.News from the demonstration.
Jennifer, a demonstrator who wished to be identified only by her first name, said she came to the Supreme Court for her son, her daughter, and son-in-law, all of whom identify as LGBTQ.
“I’m here for my son,” she said. “He should have the same rights as anyone else should have. Why because he expresses himself differently is he not entitled to the same rights as Mitch McConnell’s daughters or whatever [children] he has? We all deserve the same rights. I’m here for my son and for my daughter and son-in-law. I’m here for all the people who have been marginalized.”
Anna Morrison, coordinator for LGBTQ support and diversity programs at American University, said she came to the Supreme Court to demonstrate on behalf of her own rights as well as the young people she works with at the university, which is in Washington, D.C.
“I’m a queer person and I’m lucky to work with LGBTQ youth, and I think it’s important for their future to be out here, not only for myself, because who knows where I’ll be working down the line,” she said. “But every human being deserves protection and deserves to work and not be fired based on any identity that they hold.”
Morrison said if the cases being heard are decided in a way that harms the LGBTQ community, LGBTQ advocates should continue to push for passage of the Equality Act in the Senate and show LGBTQ youth that they will continue fighting for workplace protections.
An American University student who came to the demonstration, but did not provide their name, said they are worried about the precedent the cases might set. “It [would say] that we’re second-class citizens, which I don’t think is acceptable to me. It’s about saying we do deserve equality either way,” they said.
Demonstrators marched to the Supreme Court on Tuesday morning where they met with about 40 counterprotesters holding signs that read “Don’t threaten equal opportunity for women,” “protect fairness for women,” and “sex not gender” that showed the Alliance Defending Freedom’s logo at the bottom. The Alliance Defending Freedom (ADF) in an influential anti-LGBTQ group that argues discriminatory practices are protected by “religious liberty.”
The ADF has worked closely with the Trump administration, and former ADF staffers have taken positions within the anti-LGBTQ administration. In 2018, then-Attorney General Jeff Sessions announced a task force to implement so-called religious liberty guidance at an ADF-backed summit.
Other counter-demonstrators held signs that read “trans women are men” and wore shirts that read “woman is female.” The demonstrators then chanted “sex not gender” until the Gay Men’s Chorus of Washington gathered nearby and sang “We Shall Overcome” to drown out their words.
It’s unclear whether any of the five conservative justices on the Supreme Court will be persuaded by the arguments in favor of LGBTQ workers and others affected by sex discrimination protections. Supreme Court Justice Neil Gorsuch asked whether an issue of “massive social upheaval” would lend itself to a “legislative rather than a judicial function?” Supreme Court Justice Samuel Alito said he wondered whether attorneys for LGBTQ petitioners were trying to change the meaning of what Congress understood sex to mean.
In a recent amicus brief, historians argued that the understanding of sex at the time of the law’s passage may have been broader than some people understand, and that LGBTQ people could be understood to be included.
On the possible outcome of these cases, Harper Jean Tobin, policy director at the National Center for Transgender Equality (NCTE), said, “If there are five justices on this court who believe in applying the text of the law,” the plaintiffs will win and LGBTQ workplace protections will remain intact. “If somehow the justices twist the law, ignore the text, and legalize discrimination in half the country, we will need to turn to our legislators to fix this huge hole that the courts will have blown in our laws.”
“We will have to turn to the U.S. Senate and we still have to turn to state legislatures to protect workers again the way they’re protected under the law now,” Tobin continued. “But we hope that there are five textualists on this court who will apply discrimination on the basis of sex the way it’s written to find it protects workers who are fired because of who they are.”