WASHINGTON – As he stood on the steps of the Supreme Court Tuesday, Phoenix native Juan Hinojos called it “mind-boggling” that LGBT people can get married in the U.S. but are still fighting for protection in the workplace.
That’s why Hinojos joined hundreds of protesters as the court as it considered one of the most emotional questions of its term – whether employment laws that prohibit discrimination “because of … sex” also apply to sexual orientation and gender identity.
“Everyone deserves every right in the workplace, wherever it is,” said Hinojos, who now lives in Washington. “Obviously, we got marriage equality, but the fact we’re now fighting for our right to work in any space we want is just mind-boggling.”
But other protesters Tuesday said the protection against sex discrimination should only apply to the sex assigned at birth.
“If sex is redefined to mean gender in civil rights laws, it can have massive ramifications, for example, for women’s equal athletic opportunities,” said Christiana Holcomb of the Scottsdale-based Alliance Defending Freedom. She predicted “chaos” in schools and the workplace if the court accepts that definition.
About half the federal circuit courts in the country already interpret Title VII of the 1964 Civil Rights Act – which prohibits workplace discrimination on the basis of “race, color, religion, sex, or national origin” – to include protections for sexual orientation or gender identity. One of those is the 9th U.S. Circuit Court of Appeals, which includes Arizona.
But advocates said that there are no protections in Arizona state law for lesbian, gay, bisexual or transgender workers, and that a Supreme Court ruling against the broader definition of “sex” would have a major impact on the “estimated 250,000 LGBT people living in the state.”
Peter Renn, counsel at Lambda Legal, also said that if the court rules on the side of employers in the cases it heard Tuesday, it could open the door to more anti-LGBT discrimination, in areas such as housing and harassment in schools, with no legal recourse.
He said protection varies by city in the state, with Phoenix offering completed protection and Scottsdale offering little, for example.
A 2018 Human Rights Campaign report said 46% of LGBTQ workers say they are closeted at work, while 1 in 5 have been told or had coworkers imply “that they should dress in a more feminine or masculine manner.”
In each of the three cases heard Tuesday – one concerning a transgender worker in Michigan and two over LGBT workers in Georgia and New York – the employees were fired because of their gender identity or sexual orientation.
Outside the court, protesters gathered under rainbow flags or pink signs claiming a change would threaten women’s rights and took turns shouting each other down.
“This is going to be one of the most important decisions from the Supreme Court since marriage equality,” said Zeke Stokes, a spokesperson for GLAAD, pointing to the 26 states without explicit workplace protections. “You can get married in those states by Saturday and can be fired from your job on Monday, and we have to correct that injustice.”
-Cronkite News video by Hannah Ehrlich
Organizations such as the American Civil Liberties Union and the Stonewall Alliance held up pride flags and signs that declared “Trans Equality NOW” and “trans people belong.” More filled the street in front of the court, chanting behind a line of police officers, “No fear, no hate, don’t LGBT discriminate!”
Mixed in with them was a sizable number of counter-protesters who held pink signs with “protect fairness for women” written in cursive, the hashtag #sexnotgender and a photo of a female teenage athlete.
Holcomb said she currently represents three high school athletes who are “being displaced” in their programs by “biological males who identify as female who are dominating women’s sports.”
Protesters who sided with the employers in Tuesday’s cases argued that workplaces should have the right to decide “who gets hired and who gets fired” based on their religious beliefs, and that “women and girls will be further discriminated against” if the workers win.
But those speakers were largely drowned out by chanting from the other side.
“I hope that queer kids, especially trans kids, see there are a lot of people who will show up and fight for them,” said Adam Eli, a community organizer who came from New York City for Tuesday’s rally.
Others, like now-retired Mary Kay Wallk, came because they remembered a time when workplace discrimination was more blatant.
“I spent 25 years in the Illinois National Guard in the closet,” Wallk said. “Fortunately, I wasn’t kicked out and had a career, then I was able to marry my wife of 28 years.”
She added that in her experience, “Even if you stay in the closet, if you don’t have that ‘normal’ gender look, you could be fired.”
Despite concerns about the court’s ruling, Renn said there “is still reason for optimism.”
“The overwhelming majority of Americans believe LGBT employees should be protected, and that momentum is powerful,” he said.
Holcomb, meanwhile, said she is confident that the court will stick to the plain language of the law and rule in favor of the employers.
A ruling in the cases is not likely for several months.
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