A skydiving instructor in New York, a funeral-home director in Michigan, a child-welfare advocate in Georgia: Donald Zarda, Aimee Stephens, and Gerald Lynn Bostock are three people who seemingly have little in common, save for one extraordinary fact. Each claims to have been fired because they are gay or transgender, and all three will argue their cases before the U.S. Supreme Court this week.
The Court will decide whether existing federal civil-rights law protects millions of LGBTQ people from discrimination in the workplace, potentially clearing the way for new challenges across the legal system. But more important, the Court’s ruling will be a powerful symbol of the status of LGBTQ rights in America today. Faced with the legal mess America left behind when it moved on from its gay-rights moment following the legalization of same-sex marriage in Obergefell v. Hodges in 2015, the justices will decide whether the law actually reflects a culture that is radically more accepting than it was even a few years ago.
All three of the alleged wrongful-termination cases hinge on one word: sex. Under Title VII of the Civil Rights Act of 1964, employers cannot fire, refuse to hire, or otherwise penalize people because of their sex. (The law also protects employees from discrimination based on other characteristics, including race, color, religion, and national origin.) When the statute was originally passed more than half a century ago, “clearly there was no intent to cover sexual orientation or transgender [identity],” Michael C. Harper, a law professor at Boston University, told me. At the time, sodomy was a felony offense in the majority of states. Most members of Congress had likely never heard of the concept of fluid gender identity. Even today’s broadly accepted definitions of sex and gender were different: LGBTQ advocates differentiate between people’s biological makeup, or sex, and the way they express themselves, or gender. Fifty years ago, that distinction would not have been intuitive. “They were trying to say that you can’t have ‘women’s jobs’ and ‘men’s jobs’ in a very simple way,” Richard Epstein, a law professor at New York University, told me.