Today's The Day The Supreme Court Decides Our Fate

Today is the first Monday in October, the day the Supreme Court begins the new session.

There is much at stake today [Ops... it turns out Tuesday the cases are being heard], not only for trans people but also lesbians and gay; the court today is deciding if we get our human right to exist. Whether we are treated as human beings or as sub-humans is in the hands of nine people.

A little history…

The first Supreme Court case that is used as precedent in court cases was Oncale v. Sundowner Offshore Servs. held that same-sex harassment is sex discrimination under Title VII. 

The next case that is used as precedent in court cases about our rights is the classic case Price Waterhouse v. Hopkins which said that sex stereotyping is covered in Title VII.

Then the case that I liked what the judge said in his ruling was, Schroer v. Billington where the Library of Congress refused to hire a trans woman,

The court stated that since the employer refused to hire the plaintiff because she planned to change her anatomical sex by undergoing sex reassignment surgery, the employer's decision was literally discrimination "because of ... sex." The court analogized the plaintiff's claim to one in which an employee is fired because she converted from Christianity to Judaism, even though the employer does not discriminate against Christians or Jews generally but only "converts." Since such an action would be a clear case of discrimination "because of religion," Title VII's prohibition of discrimination "because of sex" must correspondingly encompass discrimination because of a change of sex. 

About these cases today…

'On the Basis of Sex': SCOTUS Revisits 'Price Waterhouse' and 'Oncale'
On October 8, two days into the U.S. Supreme Court’s 2019 term, the justices will take up three cases from the 2nd, 6th and 11th Circuits that will have profound implications on employment nationwide.
Law.com
By Thomas H. Prol
September 13, 2019

On October 8, two days into the U.S. Supreme Court’s 2019 term, the justices will take up three cases from the 2nd, 6th and 11th Circuits that will have profound implications on employment nationwide. The court will hear arguments in Bostock v. Clayton County, Georgia, Case No. 17-1618, and Altitude Express v. Zarda, Case No. 17-1623, appeals from the 11th and 2nd Circuits, respectively, on the question whether a sexual orientation discrimination claim is actionable as sex discrimination under Title VII of the Civil Rights Act of 1964. Then, in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission and Aimee Stephens, Case No. 18-107, the court will consider an appeal from the 6th Circuit on the question whether a gender identity discrimination claim is actionable as sex discrimination under Title VII.

The two sexual orientation discrimination cases are consolidated into a one-hour argument, with the plaintiff-employee appealing in Bostock and the defendant-employer appealing in Altitude Express, followed by a one-hour argument scheduled in R.G. & G.R. Harris Funeral Homes, where that employer is also appealing. This comes against the shift in the political backdrop to these social and legal issues that followed the 2016 presidential election, a seismic change that has impacted the cases on both sides of the bench.

Harris Funeral Homes offers a curious scenario in which the Equal Employment Opportunity Commission (EEOC), represented by the U.S. Solicitor General, has joined with the employer to ask the court to reverse the 6th Circuit, which found in favor of the transgender employee. Interestingly, despite the prodding of the Solicitor General’s Office, the EEOC’s general counsel did not join in the government’s brief, nor did any EEOC staff attorney.** Moreover, despite the solicitor’s legal arguments to the contrary, the EEOC had not (yet) formally rescinded its position that gender identity discrimination claims are covered under Title VII, though that is largely expected soon, including a possible overruling of Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995 (2012), and Baldwin v. Foxx, EEOC No. 0120133080, 2015 WL 4397641 (2015), which underpin the agency’s rationale for extending Title VII protections. During oral arguments before the 2nd Circuit in Zarda v. Altitude Express, the en banc panel seemed to express judicial “bemusement,” as LGBT legal scholar Professor Arthur Leonard at New York Law School expressed it, in facing lawyers from both the solicitor general’s office and the EEOC arguing against each other. The solicitor’s argument is discussed in more detail below.

So those are the cases being heard today and they have far reaching implications for us.

Trump Justice Department Says It's Fine If Women Are Forced to Wear Skirts
In this op-ed, ACLU fellow Emma Roth explains how the Trump DOJ's attack on LGBTQ+ rights has far-reaching implications for cis women and girls.
Teen Vogue
By Emma Roth
September 30, 2019

On October 8, the Supreme Court will hear a case with sweeping implications for anyone who does not conform to outdated gender stereotypes. In its brief, the Trump administration argued that a funeral home was justified in firing an employee, Aimee Stephens, just because she is transgender. Although the case centers on transgender rights, Trump’s lawyers took a position that would diminish the rights of cisgender women and girls too — by allowing employers to force all employees to dress and behave in accordance with archaic gender norms and punish them if they do not.

If this sounds like the stuff of a Margaret Atwood novel, rather than a realistic scenario in 2019, unfortunately it’s all too real. The brief should set off alarm bells for everyone who cares about gender equality.
[…]
Ignoring this longstanding precedent, the Trump administration argued in its brief that employers can insist that men and women dress in a manner that aligns with stereotypical understandings of gender. Title VII, Trump’s lawyers claim, permits employers to force women to conform to sex stereotypes so long as they also force men to conform to parallel sex stereotypes. Under this logic, an employer is off the hook for forcing women to wear skirts so long as it prohibits men from doing so.

From an article in USA Today by the husband of the gay skydiver…

If the Supreme Court rules that Title VII does not protect us from this kind of discrimination, as this administration hopes it will, it will set a precedent that discrimination against LGBTQ people in the workplace is legal. This means that any employers who want to shun us and prevent us from actualizing our talents will have the blessings of U.S. law. It is imperative the court does not sanction prejudice in that way. The consequences would be dire.

Whatever happens it will have long lasting effect on us.

Even state laws may not protect us if the court rules in favor of religious bigotry, if the court rules that ‘religious freedom” tops state laws on discrimination.

I have to be hopeful, I think Chief Justice Roberts will be the swing vote and he will vote in our favor. He is the only conservative justice on the court who isn’t a religious fanatic.