Aveda Adara, a 41-year-old transgender woman, said the mistreatment she faced due to her gender identity led her to quit her job at a major health care company just outside Houston, Texas.
“I was constantly misgendered by managers, supervisors and employees,” Adara told NBC News. “My own manager would routinely discriminate against me, and nit pick and micromanage me.”
After she left that full-time role, Adara said she became depressed, found herself with no health insurance and was forced to cash out her 401(k) retirement account to have enough money to get by. Eventually, she found two part-time jobs to make ends meet, but these positions do not provide any benefits.
Employment discrimination, however, is nothing new to Adara. “I’ve been laughed out of interviews for so many years,” she said.
“I live in Texas, and there are no laws in Texas that protect people like me,” she added. “I can be fired for being who I am.”
While 20 states and the District of Columbia have laws explicitly banning workplace discrimination based on gender identity and sexual orientation, federal civil rights law is less clear. Title VII of the Civil Rights Act of 1964 “prohibits employment discrimination based on … sex,” but whether “sex” discrimination in this context is inclusive of anti-LGBTQ discrimination is at the center of three cases before the Supreme Court.
The high court will hear oral arguments in these cases on Tuesday, and its decision — expected in the spring or summer of 2020 — could have a dramatic impact on LGBTQ workers’ rights. One case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, marks the first time a transgender civil rights case has come before the Supreme Court.
Trans workers across the country, including Aveda Adara, will be watching the case closely. Adara said she plans to leave her home state, which is not among the 20 states that explicitly ban LGBTQ workplace discrimination, if the Supreme Court rules against the transgender employee at the center of the case.
“I think I would feel safer in a state that would protect me,” she explained.
Aimee Stephens’ story
Currently before the Supreme Court are three cases regarding LGBTQ workplace discrimination — two, which have been combined, involve alleged discrimination based on sexual orientation, and one involves gender identity. Aimee Stephens is at the center of the latter.
Stephens was fired from a Detroit funeral home in 2013, shortly after she informed her employer, for whom she had worked for six years, that she was beginning her gender transition and intended to live and work as a woman. According to court documents, her boss told her “this is not going to work out” and terminated her employment. The decision to sue and forego a severance package, which would have required her to keep quiet about the circumstances surrounding her termination, was not an easy one.
“That’s not something that I thought I could do and live with,” Stephens said. “I couldn’t stay silent; I had to say something.”
After a trial judge ruled against her, Stephens won a landmark victory for transgender rights in March 2018 when the 6th U.S. Circuit Court of Appeals found that Title VII’s prohibition on sex discrimination covers transgender workers.
“Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII,” Judge Karen Nelson Moore wrote in the 6th Circuit’s decision. “The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex."
The funeral home appealed the ruling to the Supreme Court, and the high court announced earlier this year that it would take up Stephens’ case, along with two others involving sexual orientation discrimination in the workplace.
‘Every interview was awkward’
The workplace experience of Stephens is “very familiar to many transgender people,” according to Gillian Branstetter, a spokesperson for the National Center for Transgender Equality.
According to the center’s 2015 U.S. Transgender Survey, one in six trans people said they lost a job because of their gender identity or expression, and nearly a third (30 percent) of those who had held a job in the year prior to the survey reported being fired, denied a promotion or subjected to harassment or attack due to their gender identity or expression. Over three quarters of respondents said they had taken steps to avoid such mistreatment at work, like delaying their gender transition or simply quitting their job.
Workplace discrimination has a ripple effect, Branstetter stressed, noting that it “contributes to a crisis of homelessness, poverty and violence faced by too many in our community.” Almost one third of respondents to the 2015 survey reported living in poverty, compared to 14 percent of the general U.S. population. This differential is due, in part, to higher rates of unemployment: At the time of the survey, the unemployment rate was 15 percent among trans Americans, compared to a national average of 5 percent.
Many trans workers remain in discriminatory workplaces in order to put food on the table. “Jane” from Jefferson City, Missouri, is one of them. She asked to use a pseudonym because she still works at a company that she says discriminates against her.
Jane said when she came out to her human resources manager, the manager requested that Jane use the one single-stall restroom in the office building.
“The biggest problem is when it is being cleaned, is in use by someone else or is being worked on by maintenance, I won't have a place to go,” Jane said, noting there are 28 other restrooms in the building that she’s not permitted to use.
“I don't want to risk my job, so I agreed to it,” she said. “I have kids, and money is necessary to feed them.”
Charlie Arrowood from Roslyn Heights, New York, said they struggled to find a job after passing the bar exam, because potential employers were uncomfortable with Arrowood’s nonbinary gender identity.
“Every interview was awkward, because I'd show up in a suit and nobody would know what bathroom code to give me or how to address me,” Arrowood explained.
Arrowood said their worst experience happened during an interview for a staff attorney position at a large insurance company.
“I walked in and the person set to interview me, in front of several other people who would be present for the interview, looked at me in my suit, looked at my resume with my birth name, and asked, ‘Are you sure?’” Arrowood recalled. “I then had to sit in an interview with all of those people for several hours."
Lily, 21, works at a food service company in San Antonio, Texas. She asked that her last name not be used, because she’s not out to her entire family.
“Every day I went into work, I was incredibly anxious that I would be working with the manager who had been deadnaming me,” Lily said, referring to the practice of calling a trans person by their given name, not their chosen one. “I called out sick several times because of that.”
“The main shift lead repeatedly asked me what my ‘real name’ was after introducing myself with my chosen name and made it a point to use incorrect pronouns as often as they could,” she added.
Like many other transgender people across the U.S. with whom NBC News spoke, Lily said she is watching the Aimee Stephens case closely. She admitted she's “incredibly nervous” about the outcome and said if the justices rule that trans people are not protected under Title VII, she “will have to continue living my life under fear of repercussions for being myself.”
‘You have to rock the boat a little’
All eyes will be on the nine Supreme Court justices on Tuesday during oral arguments amid speculation about how the high court’s new composition will affect the outcomes of these cases.
“The Supreme Court has immense legal power but also immense cultural power,” Branstetter said, “They have a massive ability to set the tone in our country.”
“Four years ago, they ruled in Obergefell, and that was seen as a landmark case in the rights of lesbian, gay and bisexual people,” she said. “How the court rules here will reverberate in households and workplaces across the country, not only in the legal sense but in the sense of affirming and believing transgender people for exactly who they are.”
Attorneys on both sides of the Stephens case stressed the enormous impact the Supreme Court’s decision could have for years to come.
John Bursch, a senior attorney for Alliance Defending Freedom, the conservative legal organization representing Harris Funeral Homes, argues that to understand sex discrimination to cover transgender individuals defies the meaning of the law the way it is written.
“This case is not about taking rights away from the LGBT community, or anybody else,” Bursch told NBC News. “What this case is about is whether the courts have the right to rewrite the law as it has been understood for more than half a century, and if courts do have that power then everybody should be worried about their rights no matter who they are.”
Chase Strangio, deputy director for transgender justice for the ACLU's LGBT & HIV Project, is one of the lawyers representing Stephens. He disagrees with Bursch.
“The law has prohibited sex discrimination for a long time, and that has covered LGBTQ people for a long time, and particularly trans people,” Strangio told NBC News. “So an outcome here where we lose is a major loss of our rights, and a win is a clarification of what has been largely true in the lower courts.”
The Trump administration made its position clear on the scope of Title VII. In August, the Department of Justice submitted an amicus brief in Stephens’ case siding with the funeral home. In doing so, the federal government is pitted against itself, since the Equal Employment Opportunity Commission is a defendant in the case.
As the case has gone on, Stephens has become a central figure for transgender rights.
“I think she’s really important for our community right now,” Adara said. “She probably feels a big weight on her shoulders, but it’s about time the country addressed this issue.”
Stephens said she feels the weight of the case, but she’s ready to continue the battle she’s been fighting for six years now.
“My whole life I’ve always tried to hold onto the status quo, to not rock the boat,” she said. “But I found out that there comes a time when, if we are going to be true to ourselves, to each other and to society … you have to rock the boat a little, and I think that’s what we are doing with this.”
Hopefully it doesn’t turn over and we all drown,” she added, “but I can swim, and I’ll be glad to help anybody else that can’t.”
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