As the Supreme Court prepares to take up LGBTQ employment discrimination, plenty of equality supporters have weighed in — in addition to the expected activist groups, they include doctors, religious leaders, major corporations, and even Republicans.
On October 8, the high court will consider the cases of two men (Donald Zarda, a skydiving instructor, and Gerald Bostock, a social worker) who say they were fired for being gay and a woman (Aimee Stephens, a funeral director) who was fired for being transgender. At issue is whether Title VII of the Civil Rights Act of 1964, which bans sex discrimination, also applies to discrimination based on sexual orientation and gender identity.
The first week of July was the deadline for filing amicus curiae, or friend-of-the-court, briefs, in support of the employees in these cases. Such briefs are filed by individuals and groups that are not directly involved in a case but want to offer an opinion on which party should prevail. Those filing briefs in support of the employers have until late August.
In the cases of Zarda v. Altitude Express, Bostock v. Clayton County, Georgia, and R.G. and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, numerous organizations have filed briefs supporting the position that anti-LGBTQ discrimination should be — indeed, is — covered by Title VII, and urging the court to rule in favor of the employees.
A brief led by the American Medical Association, in which it was joined by 15 other health care organizations, applies to all the cases but deals primarily with issues of gender identity. Citing more than four dozen health care studies and papers, it argues that protecting transgender people from employment discrimination is crucial to their physical and mental health.
“Being transgender implies no impairment in a person’s judgment, stability, or general social or vocational capabilities,” the brief states. But, it notes, “employment discrimination against transgender people frustrates the treatment of gender dysphoria by preventing transgender individuals from living openly in accordance with their true gender identity and impeding access to needed medical care.” Discrimination often results in loss of income and health insurance, the brief points out.
“Beyond exacerbating gender dysphoria and interfering with treatment, discrimination reinforces the perceived stigma associated with being transgender,” the document continues. “Such stigma, in turn, leads to psychological distress and attendant mental health consequences.”
The brief mentions the high rate of discrimination and harassment experienced by trans people, and the fact that many hide their identity at work rather than put themselves at risk. This adds to the stress they face. But when they can be themselves in all aspects of their life, including on the job, the outcomes are positive. “Transgender individuals in states with explicit employment protection for LGBTQ people experience fewer mood disorders and self-violence than those living in states where employers remain free to discriminate against them,” the AMA and its partners note.
Religious bodies are represented in a brief filed by the Episcopal Church, the United Synagogue of Conservative Judaism, the United Church of Christ, the Central Conference of American Rabbis, and more than 700 individual faith leaders. They “unite in believing it is both morally wrong and not constitutionally required to permit blanket discrimination in employment against lesbian, gay, bisexual, and transgender people based upon the personal religious beliefs of their employers or customers,” their brief states.
They note that in the Harris Funeral Homes case, a brief taking an anti-transgender position argues that some customers, because of their religious beliefs, would suffer “trauma” by dealing with a transgender funeral director in a time of grief. But that brief does not cite any cases in which someone was traumatized in this way — or why a business should be allowed to discriminate because certain customers object, the pro-LGBTQ religious leaders write. On the whole, sustaining LGBTQ employees’ right to be free of discrimination will not interfere with the fundamental right to religious belief and practice, they say.
Another brief filed by religious organizations in support of the employees comes from several Muslim groups, including the Muslim Bar Association of New York, Muslims for Progressive Values, the Muslim Caucus of America, and the Muslim Public Affairs Council. They point out that Muslims in the U.S. face a disproportionate amount of discrimination and “thus have an interest in vibrant workplace protections for all disfavored groups, including LGBT individuals, to ensure that all Americans can achieve their full potential under the protections afforded by law.”
On the business side, a supportive brief was filed by 206 companies, including such major names as Amazon, AT&T, Bank of America, Ben & Jerry’s, Coca-Cola, Disney, Facebook, Goldman Sachs, IKEA, Microsoft, Nike, Prudential, the San Francisco Giants baseball franchise, and Xerox.
“Laws forbidding sexual orientation or gender identity discrimination are not unreasonably costly or burdensome for business,” they state. “To the contrary, recognizing that Title VII prohibits these forms of sex discrimination would strengthen and expand benefits to businesses, such as the ability to recruit and retain top talent; to generate innovative ideas by drawing on a greater breadth of perspectives, characteristics, and experiences; to attract and better serve a diverse customer base; and to increase productivity among employees who experience their workplace as a place where they are valued and respected.”
Another supportive brief from business interests came from a group of women CEOs, and another from business groups including several regional chambers of commerce. Organized labor is represented in briefs from the National Education Association and the AFL-CIO, and lawyers in one from the American Bar Association.
Among politicians, Ken Mehlman, the former chair of the Republican National Committee, led a group of GOPers, included several former members of Congress, who filed a brief calling on the court to rule against discrimination. They even made a conservative “textual” argument, saying the text of Title VII clearly bans sex discrimination, and that there was clearly sex discrimination against the gay and transgender employees in the cases.
“Two men were discharged because they were gay, which necessarily means that they lost their jobs because they were men who were attracted to men,” the brief states. “Had they been similarly situated women — that is, women who were attracted to men — their employers would not have discharged them for such attraction. The other plaintiff is a transgender woman whose employer discharged her for representing herself as the woman she understood herself to be. … Had the plaintiff been assigned female at birth (or had the employer otherwise believed her to be female in essence), she would not have been discharged for representing herself as a woman.”
No currently serving Republican members of Congress were represented in the brief, but many currently serving Democrats — more than 150 — filed their own. “Title VII prohibits sex-based discrimination, and it is impossible to divorce an employee’s sexual orientation or gender identity from their sex,” their brief says. “Thus, discrimination on all bases that are related to a person’s sex, including sexual orientation, gender identity and nonconformance with sex stereotypes, is prohibited.” There’s also a brief from numerous former executive branch officials, from both Republican and Democratic administrations.
And briefs have been filed by almost every imaginable LGBTQ and general civil rights organization: American Civil Liberties Union, Lambda Legal, Transgender Legal Defense and Education Fund, PFLAG, Trevor Project, Family Equality Council, Transgender Law Center, Modern Military Association of America, Transgender American Veterans Association, National Women’s Law Center, GLBTQ Legal Advocates and Defenders, National Center for Lesbian Rights, Lawyers’ Committee for Civil Rights Under Law, Leadership Conference on Civil and Human Rights, Southern Poverty Law Center, National LGBT Bar Association, Advocates for Intersex Youth, various antiviolence groups, and many more. Add these to briefs from academics — scholars of history, philosophy, linguistics, and law among them.
No one knows how the court will rule, and it will be considering oral arguments by the parties’ lawyers, precedent, and other factors along with the amicus briefs. And there have been briefs filed supporting the right to discriminate. But the many supportive briefs before the court present a host of powerful arguments against discrimination.