A majority-conservative Supreme Court’s interpretation of Title VII could have broad impacts on the LGBT community and beyond. Where does that leave LGBT Minnesotans?

As the Supreme Court decides on three LGBT work discrimination cases, queer and trans people around the country are bracing for the potential impact to their lives and livelihoods.

If the Court decides LGBT individuals are not protected by Title VII of the Civil Rights Act, its impact could go far beyond the community– according to advocates, anyone could face workplace discrimination if they don’t conform to their employer’s standards of gender.

In Minnesota, state and municipal protections could become all the more critical for workers. If you live in the state of Minnesota, you are already legally protected from discrimination on the basis of sexual orientation and gender identity.

Under the Minnesota Human Rights Act, sexual orientation is defined broadly to include not only cisgender individuals in gay or lesbian relationships, but people regardless of gender identity.

This law, amended in 1993, made Minnesota the first state to protect trans and gender nonconforming people from discrimination in the workplace and more broadly. Additionally, St. Paul and Minneapolis each have their own ordinances protecting against discrimination on the basis of sexual orientation and gender identity.

What is the Supreme Court actually deciding?

The Supreme court heard two arguments today on three cases – one combined argument for two gay men who separately complained they were fired because of their sexual orientation, and one of a trans women who says she lost her job after disclosing her transition to her employer. Aimee Stephens, the plaintiff in the trans discrimination case, was fired from her job at a funeral home when she informed her employer of her transition. When asked why he fired her, her employer is reported to have said, “Well, because he was no longer going to represent himself as a man. He wanted to dress as a woman.” 

The court’s decision on whether or not these terminations were lawful depends on its interpretation of Title VII of the Civil Rights Act, which protects against discrimination on the basis of sex. The Trump administration insists that this does not apply to LGBT individuals, either on the basis of sexual orientation or gender identity; meanwhile, the EEOC’s website states that

“discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII.” 

Federal courts are split on their interpretation of Title VII. 22 states, including Minnesota, have their own explicit protection on the basis of sexual orientation, and 21 provide protection on the basis of gender identity. 

Today marks the first time the Supreme Court has tackled LGBT issues since Trump’s appointment of Justices Kavanaugh and Gorsuch. With the four liberal justices likely to side with the gay and trans plaintiffs, one conservative justice could decide the outcome. The newly appointed Gorsuch indicated that he believed sex was a factor in the discrimination against the two gay men, but later suggested that Congress—and not the court—should decide whether to extend protections to LGBT individuals. 

A note on history:

Like other labor rights, a rich history of struggle led to current protections. As attorney and LGBT rights advocate Sam Ames pointed out in a post Monday, the Civil Rights Act included “sex” as a protected class because “there was actually considerable organizing and strategizing going on, led in large part by women and gender nonconforming people of color.” He credits Pauli Murray, a Black trans activist and lawyer whose advocacy for gender protections has gone largely unsung in mainstream accounts of the Civil Rights Act. For deeper analysis on the law and history, see his post on Medium.

How will this impact workers? 

In states without their own laws protecting against discrimination, employers will legally be able to discriminate against LGBT workers. Even if a worker does not identify as LGBT, they could potentially be discriminated against if they don’t adhere to the employer’s standards for their gender. Many of the LGBT-friendly interpretations rely on the legal arguments of a 1989 Supreme Court ruling, Price Waterhouse v. Hopkins, in which the Court found that an employer could not discriminate based on a worker’s adherence to “sex stereotypes” – that the plaintiff, Ann Hopkins, could not be legally fired for appearing “too masculine.” 

Changes to this interpretation could mean, in theory, employers could take action against workers for wearing or not wearing certain clothes, makeup, or not behaving in ways that are typically masculine or feminine, like smiling. 

In states that do have protections for LGBT workers, like Minnesota, the bulwark of protections built up at the state and municipal level become increasingly important. An increased workload may also fall on state and local agencies. Stephens, the trans plaintiff, said in an interview with Vox Monday, “Regardless of whether it’s a favorable decision or not, we still have a lot of work to do. When this part’s over, we just work on the next issue, and work hard and keeping going.”

If you believe you have experienced discrimination because of your gender or sexual identity, contact the Minnesota Department of Human Rights at 651.539.1100

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