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Only Two Appalachian States Have Laws that Protect Trans Workers. This SCOTUS Case Could Change That.

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Outside the U.S. Supreme Court on April 28, 2015, when arguments for same-sex marriage were made. Photo: Ted Eytan/Flickr

In all but two Appalachian states, transgender workers have no state or federal protections if they are discriminated against or fired for their gender identity. However, a lawsuit up for consideration by the Supreme Court of the United States could change that — not just for Appalachian workers, but for all American transgender employees.

As a new term of the U.S. Supreme Court begins Monday, justices will soon decide whether to take up the case of EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. The case began in 2013 after Aimee Stephens told her bosses at the Detroit, Michigan, funeral home that she planned to transition. Stephens was fired.

David Dinielli, deputy legal director of the Southern Poverty Law Center’s LGBT Rights Project, said that lawsuit that has resulted from Stephens’ firing could have broader implications for the livelihoods of all transgender workers.

“We know through research that many people in the South, presumably in Appalachia as well, don’t come out, principally because they fear for their jobs,” Dinielli said. “When people don’t come out, it has all sorts of consequences.”

Stephens had worked at the funeral home for six years, often receiving positive reviews and raises, according to CNN, but her employer threatened to fire her when he was notified of her intent to transition, because, he said, of his Christian faith.

After her firing, Stephens filed a complaint with the Equal Employment Opportunity Commission. In March, the case was taken up by the U.S. Sixth Circuit Court of Appeals, who agreed that Stephens’ termination violated Title VII of the Civil Rights Act, which forbids employers from discriminating based on sex.

Supporters of Harris Funeral Homes’ decision, however, argue that Title VII only provides protections based on biological sex. Since the funeral home’s lawyers petitioned the Supreme Court to take up the case, 16 states have signed an amicus brief urging the court to rule that Title VII does not protect transgender employees. Five of those states are in Appalachia: Alabama, Kentucky, South Carolina, Tennessee and West Virginia.

Both Dinielli and Lambda Legal’s Employment Fairness Project Director Greg Nevins believe the potential outcomes of the appeal are difficult to predict until the court decides whether to hear the case. If the Supreme Court rejects the funeral home’s petition, then the previous ruling from the Sixth Circuit would stand. That would be to transgender employees’ advantage, especially in states where precedent has already been set to protect transgender workers, Nevins said.

“All the court has to do is turn down the case, which happens all the time,” he said.

Although no Appalachian states have passed statewide employment protections for the transgender community, several cities and municipalities in West Virginia, Kentucky and South Carolina have passed ordinances prohibiting discrimination based on sexual orientation and gender identity. In New York and Pennsylvania, state law prohibiting sex discrimination has been interpreted to include those same protections.

Nevins said that Appalachian transgender workers should not view the case’s rejection as an inherently bad outcome, even if they live in a jurisdiction where no precedent has been set on employment discrimination specifically. No precedent is better than a bad precedent, Nevins said, and outcomes in tangentially related cases could provide lower courts with future guidance. He pointed to the case of a transgender student in Virginia as an example.

In 2017, the Trump administration rolled back U.S. Justice Department guidelines that protected transgender students’ rights to use the bathroom that matches their expressed gender identity. After the decision, the Supreme Court decided not to hear the case of a transgender student from Gloucester, Virginia, who had been barred from using the boys’ bathroom. That bumped the case back to a lower court, which had to rule based on the precedent set by previous discrimination cases.

Nevins said that case, which was decided in favor of the transgender student, could serve as guidance in future employment cases as well. The U.S. Fourth Circuit Court of Appeals later decided not to hear an appeal of that ruling because the student, Gavin Grimm, had already graduated from high school.

Grimm’s case doesn’t guarantee that transgender employees who face discrimination would win future lawsuits, Nevins said, but it at least provides an example that lawyers can point to if the Supreme Court rejects Stephens’ case.

“It’s really not a bad position,” he said.

If the Supreme Court does take up the funeral home’s appeal, Dinielli is uncertain about what that could mean for transgender workers, especially if Brett Kavanaugh is named to the court. Kavanaugh is the Trump administration’s current pick to replace former Justice Anthony Kennedy, who Dinielli said had “demonstrated time and time again that he was someone who recognized the inherent dignity of LGBT people.”

President Donald Trump’s Supreme Court nominee, Brett Kavanaugh, testifies before the Senate Judiciary Committee on Capitol Hill in Washington, Wednesday, Sept. 5, 2018, on the second day of his confirmation hearing to replace retired Justice Anthony Kennedy. Photo: Jacquelyn Martin/AP Photo

“We’re not so certain that either Judge Kavanaugh or anyone who might soon be sitting in his seat, if he doesn’t make it through this confirmation process, would have the same level of respect for the dignity and lives of LGBT people,” Dinielli said.

Although gender identity is not explicitly named under Title VII, previous court cases set precedent in transgender workers’ favor. Both Dinielli and Nevins said courts have previously ruled that sex discrimination includes not just prejudice based on a person’s biological sex, but also employer mandates that require workers to adhere to sex-based stereotypes. The primary case backing that interpretation is Price Waterhouse v. Hopkins, a 1989 case in which the Supreme Court ruled that accounting firm Price Waterhouse discriminated against employee Ann Hopkins for not being feminine enough.

“She was a woman and she behaved in a particular way which would have been OK if she were a man, but people didn’t like this…and for that reason the discrimination was because of sex,” Dinielli said. “She was described as butch. There were lots of comments made about the fact that she walked like a man, talked like a man.”

That case has become central to Stephens’ case, both for lesbian, gay, bisexual and transgender community advocates and for the Republican representatives who oppose the Sixth Circuit’s ruling. Dinielli said that LGBT advocates believe the Supreme Court ruling protects transgender workers because they, like Hopkins, don’t conform to the sex stereotypes associated with the sex they were assigned at birth.

“We see this play out in the Aimee [Stephens’] case,” Dinielli said. “The employer thinks because Aimee [Stephens] was assigned male at birth– and for the first six years of her employment identified as a man– she shouldn’t now be behaving, dressing, identifying and naming herself as a woman. In other words, she is now not conforming to her employer’s sex-based stereotype of the way she should be.”

In the amicus brief, filed in August, the 16 states who side with Stephens’ former employer ask that the Supreme Court decide once and for all whether the court’s 1989 ruling in the Price Waterhouse case applies to gender identity as well as biological sex. It additionally argues that the Sixth Circuit’s decision amounted to “policy experimentation,” asserting that “’sex’ under the plain terms of Title VII does not mean anything other than biological status.”

The brief’s main argument relies on the assertion that Title VII does not include the terms “gender identity” or “transgender,” and that previous attempts to include such language have failed, making sex distinct from gender identity. It does not, however, detail the difference between discrimination based on conforming to sex-specific stereotypes — which was essentially outlawed with the Price Waterhouse decision — and discrimination that is the result of an expression of one’s gender identity rather than his or her biological sex.

If precedents that afford transgender people discrimination protections are not upheld, Dinielli said workers will not have equal access to the economic and social stability afforded to other employees who do not have to fear for their jobs because of their identities. Healthcare, for example, which most Americans secure through employers, is harder to access, as is “the sense that one is a contributing member of society,” he said.

Transgender employees would have to fear loss of employment, not just if they declare their intent to transition, but also if they have already medically or socially transitioned. An employer who discovers a trans person’s gender identity, either through a background check or through social media, would face almost no consequence if he or she rescinded a job offer or terminated the employee.

Those situations are not simply hypothetical, Dinielli said. The Southern Poverty Law Center has handled at least one case in which a man in Louisiana was discriminated against because his coworkers discovered he was transgender.

“He got a job at a local bank. Within the first week, someone at the bank found out, based on reviewing his driver’s license that still had a female gender marker on it, that he was transgender, and he was essentially forced out of his position as a result,” Dinielli said.

Employers who discriminate against transgender workers often feel emboldened to do so because they are uncomfortable or feel that the employee is attempting to deceive the company, Dinielli said. Any decision by the Supreme Court to back the funeral home’s actions could make that trend worse, he said.  

“We know that most people who know someone who’s [lesbian, gay, bisexual or transgender], typically through work, have very different views on the roles we play in society and the rights we should be afforded,” Dinielli said. “Visibility leads to equality, and as people stay in the closet because they fear for their jobs, then the march toward equality is slowed, if not halted.”

The 2018-2019 term of the Supreme Court begins Monday and will last through July of next year. The court decides which petitions to hear on a rolling basis, therefore, the decision of whether to hear Stephens’ case could come at any point during the term.

100 Days Student Editor Kristen Uppercue contributed to this report.

Tiffany Stevens (@tiffanymstevens) is a print journalist living in Southwest Virginia. Their newsletter, “Happening at Home,” rounds up great reporting from two different cities each issue.