From left: Aimee Stephens, Donald Zarda, and Gerald Bostock
Monday’s Supreme Court ruling was thrilling to LGBTQ+ Americans and their allies, but the work isn’t done yet — even for the parties in the cases.
The court ruled that Title VII of the Civil Rights Act of 1964, in banning sex discrimination in employment, also bans discrimination based on sexual orientation and gender identity. The court did not rule on the merits of the three cases it considered — that is, whether such discrimination actually occurred. So the cases will go back to lower courts that will make that determination.
The plaintiffs in two of the cases, Donald Zarda and Aimee Stephens, are deceased, but their loved ones are continuing to pursue their discrimination claims. The one surviving plaintiff, Atlanta-area social worker Gerald Bostock, reports he was overjoyed to see the high court’s ruling.
“What an amazing day,” he said on a conference call with reporters Monday afternoon. “Words cannot fully express how elated I am and how happy I am.”
His journey to the Supreme Court began in 2013. Bostock, a gay man, had been working as child welfare services coordinator assigned to the Juvenile Court of Clayton County, Ga., for a decade when he joined the Atlanta area’s Hotlanta Softball League, a gay-focused league, in January 2013. He directed an award-winning program for the county that assigned volunteer advocates to neglected and abused children in the juvenile justice system, and he had received good performance reviews. He hadn’t been closeted at work, but joining the gay softball league made his identity subject to heightened scrutiny.
In June of that year, he was fired, with county officials saying he had mismanaged funds — totally untrue, he says. The real reason for his dismissal, he says, was his sexual orientation. He sued the county, claiming discrimination under Title VII. In Bostock v. Clayton County, a trial court and a federal appeals court ruled that Title VII did not apply to sexual orientation, so he appealed to the Supreme Court. Now that the Supreme Court has ruled it does apply, Bostock will have a chance to prove the county discriminated against him. “This means that I will be going back to court,” he said, and he feels good about his chances.
In a follow-up conversation with The Advocate Monday evening, Bostock, now working as a mental health counselor, was still jubilant after a day of media interviews. “I’m feeling overwhelmed with happiness and joy,” he said. “This is the moment I’ve been waiting for, that we’ve been waiting for.” He thanked his family, friends, partner, legal team, and the organizations that have helped him, including the Human Rights Campaign, the American Civil Liberties Union, and Georgia Equality. “Without their love and support, I know I would not have made it to this moment,” he said.
One of his attorneys, Tom Mew of Buckley Beal in Atlanta, noted that while Bostock has had a long journey already, it’s still early as far as consideration of the merits of his case is concerned. Mew declined to make any predictions about how the lower courts would rule but told The Advocate, “We are confident in our case, in our evidence.”
Mew and Bostock both observed that the ruling was a landmark one for LGBTQ+ Americans but said much work remains to be done. For one thing, the ruling applies only to employment, not the many other aspects of life where people encounter discrimination — housing, public accommodations, federally funded programs, and more. That’s why Congress still should pass the Equality Act, which would ban anti-LGBTQ+ discrimination in all those areas, they said.
They also noted the ruling comes at a time when racism is at the forefront of the national conversation, with outcry over all its manifestations but especially police brutality against African-Americans. This also shows how much work there is to be done, Bostock said: “There’s just absolutely no room for discrimination or racism in this world.”
But the Supreme Court decision is a ray of hope for fighters against discrimination. It’s like “a symbolic rainbow after a bad storm,” Bostock said.
The other cases in the Supreme Court’s Monday decision involved Donald Zarda, a skydiving instructor who was dismissed by a New York-based company in 2010 after telling a client he was gay, and Aimee Stephens, a Michigan funeral director who lost her job after she came out as transgender and told her employer she would begin presenting as female at work.
In Zarda v. Altitude Express, the skydiving company claimed the instructor was fired not for being gay but for inappropriately touching a female client; he and his loved ones said he would never do such a thing. Zarda, a dedicated adventurer, died in an accident in Europe in 2014, at age 44, while BASE jumping, an activity that involves jumping from fixed objects with a parachute or wingsuit and is more dangerous than skydiving. (“BASE” is an acronym for the four types of structures used — building, antenna, span, and Earth, the last one extending to cliffs.)
Zarda’s partner, William Allen Moore, and one of his sisters, Melissa Zarda, are coexecutors of his estate and have continued to pursue his discrimination claim. The U.S. Court of Appeals for the Second Circuit had ruled that Title VII applied in his case, and now that the Supreme Court has agreed, they will be back in the lower courts arguing the case’s merits.
“My brother Don was my rock, my everything,” Melissa Zarda said in an ACLU press release Monday. “I stood in the Supreme Court to honor his memory and to continue the fight for fairness. What happened to Don was wrong. People in our country already knew this, and now there is no question.”
Gabriel Arkles, senior staff attorney with the ACLU LGBT & HIV Project, which is working on Zarda’s and Stephens’s cases, expressed optimism about the outcome of both. “We have every expectation that there will be a positive result,” he told The Advocate via email.
Stephens’s case, Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, dates to 2013, when the trans funeral director informed the Michigan-based company that she would begin presenting as female at work. Living two lives — as a man at work and a woman elsewhere — had become so stressful for Stephens that she considered suicide. But she chose life and decided to come out to her employer. She was fired two weeks after handing her coming-out letter to her supervisor.
She complained to the EEOC, a quasi-independent agency of the federal government, and it found her case compelling and sued Harris Funeral Homes. The ACLU became involved in the case after Donald Trump became president, fearing the EEOC would not represent Stephens as effectively as it would have under President Barack Obama. Before the Supreme Court ruling, a federal appeals court ruled that Title VII applied in Stephens’s case.
The funeral home company has defended its action with its majority owner, Thomas Rost, saying that allowing Stephens to present as female at work would violate the corporate dress code — and his belief that gender is God-given, fixed at birth, and immutable. The Alliance Defending Freedom, known for arguing in favor of discrimination against LGBTQ+ people, is representing Harris Funeral Homes.
The ADF, in a Monday press release, described the Supreme Court’s decision as “truly troubling” and said it amounts to “ignoring biological reality” and “threatens our freedoms of conscience, religion, and speech.”
Stephens did not live to see the decision. She died of kidney failure May 12 at her home in the Detroit metro area, with her wife, Donna Stephens, at her side. Donna Stephens, who had been supportive throughout Aimee’s transition, released a statement through the ACLU: “My wife, Aimee, was my soul mate. We were married for 20 years. For the last seven years of Aimee’s life, she rose as a leader who fought against discrimination against transgender people, starting when she was fired for coming out as a woman, despite her recent promotion at the time. I am grateful for this victory to honor the legacy of Aimee, and to ensure people are treated fairly regardless of their sexual orientation or gender identity.”
Aimee Stephens, before her death, shared the following when discussing a possible ruling in her favor, according to the ACLU: “Firing me because I’m transgender was discrimination, plain and simple, and I am glad the court recognized that what happened to me is wrong and illegal. I am thankful that the court said my transgender siblings and I have a place in our laws — it made me feel safer and more included in society.”