OPINION: The Supreme Court has a historic opportunity to protect trans rights

by Gillian Branstetter | National Center for Transgender Equality
Monday, 7 October 2019 13:09 GMT

A person holds up a flag during rally to protest the Trump administration's reported transgender proposal to narrow the definition of gender to male or female at birth, at City Hall in New York City, U.S., October 24, 2018. REUTERS/Brendan McDermid

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* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

This week the US Supreme Court has a chance to safeguard the rights of the nation’s 2m transgender people

Gillian Branstetter is a writer, advocate, and spokesperson for the National Center for Transgender Equality, a Washington, D.C.-based policy advocacy organization

The Supreme Court of the United States will soon hold the fate of the nation’s two million transgender people in its hands. This week, the nine Justices will hear arguments in the case of Aimee Stephens, a Michigan transgender woman fired from her job at a funeral home shortly after she came out to her employer. The stakes are incredibly high for a civil rights movement that has seen immense progress in a historically short period of time.

The facts of Aimee’s case are not in dispute, and the funeral home admits Aimee’s status as a transgender woman is why she was fired. The question the Supreme Court will seek to answer is whether her employer’s actions constitute discrimination on the basis of sex.

How the Court answers this question could solidify the right of every transgender person to live and labour without fear of prejudice, moving us closer to a society free from anti-trans stigma. But it could likewise threaten much of the significant gains transgender people have made in securing our rights.

While the Supreme Court has the final say on this matter, Aimee’s case is the culmination of more than 30 years of legal precedent declaring the rights of trans people under this national law.

If a majority of the justices affirms the law does cover us, employment discrimination against a transgender person will be prohibited nationwide. If the justices reverse that consistent precedent, then the majority of trans people who live in a state without its own law will be left with no shield from prejudice.

And it’s a shield that is sorely needed. Aimee’s experience is all too common for transgender people, who experience three times the unemployment rate as our non-trans peers according to the US Transgender Survey. One in six of us has lost a job because of who we are, and many more have been denied promotions, harassed in our workplace, or turned away from a job interview altogether.

The Supreme Court will decide whether to sanction the experiences of people like Susan Powers, a New Mexico firefighter reportedly fired after 13 years because she came out as transgender. Or Aydian Dowling, a trans man who was fired from his job at an Oregon bakery after speaking about his transgender identity online.

Likewise, Dr Rachel Tudor – a Native American professor of English denied tenure and dismissed shortly after she came out to her employer – will have her rights in the hands of the highest court in the land.

Such bias fuels a crisis of poverty and homelessness that contributes to the already-grave risks for violence carried by many of us. Just this year, at least 20 transgender people have been murdered in the US,19 of them black trans women.

Many more have been brutalised, beaten and sexually assaulted. How and who this violence impacts often depends on one’s ability to sustain the economic pillars of a stable life, including fair access to housing and healthcare. Securing those can be difficult – if not impossible – if employment is far out of reach.

Regardless of how the court rules, 21 of the nation’s 50 states have already passed their own laws explicitly prohibiting discrimination on the basis of gender identity.

But a majority of transgender people still live somewhere without such protections, and someone who has just lost their job is rarely in a position to secure a lawyer and challenge their dismissal in the first place.

This is why the Supreme Court’s decision in Aimee’s case is so crucial. Four years ago, when the court secured marriage equality for same-sex couples nationwide, it sent a clear message that nobody should be forced to live in shame because of who they are or who they love.

In the case of Aimee Stephens, the Supreme Court must likewise take this opportunity to affirm the right of every transgender person to lead a life free from bias and fear.