Amee Stephens, right, and her wife Donna. (Photo Courtesy ACLU)
As the country honors its workforce on Labor Day, LGBT workers are still fighting discrimination
Tammye Nash | Managing Editor
For more than 100 years, the first Monday in September has been recognized as Labor Day, dedicated to “the social and economic achievements of American workers,” acknowledging workers’ contributions to “the strength, prosperity and well-being of our country,” according to the U.S. Department of Labor’s website.
But it only takes a quick and perfunctory look at the statistics to come to the conclusion that the contributions of America’s LGBT workers — especially those in the “T” category — aren’t as celebrated as those of their non-LGBT colleagues, based on the fact that LGBT workers themselves in many instances still aren’t protected from discrimination and harassment in the workplace.
On Aug. 24, officials representing 16 U.S. states — including Texas — filed an amicus brief with the U.S. Supreme Court urging to the court to overturn a ruling by the U.S. Court of Appeals for the 6th Circuit in favor of a transgender woman who had charged her former employer with anti-transgender discrimination, and, in doing so, to rule that it is legal to fire people because they are transgender.
According to the American Civil Liberties Union, which is representing her in the lawsuit, Aimee Stephens had been a funeral director for R.G. and G.R. Harris Funerals for six years, presenting as male, when, in 2013, she told her boss that she was transgender and intended to begin presenting as female at work, which meant she would be “dressing in appropriate business attire for a woman.”
Two weeks later, she was fired, with her boss telling her it would be “‘unacceptable’ for her to present and dress as a woman,” the ACLU notes.
Stephens filed a sex discrimination lawsuit with the EEOC and thre EEOC sued the funeral home in September 2014 in the District Court of the Eastern District of Michigan. That court dismissed her case in August 2016, saying that even though the EEOC had proven Stephens’ allegations of sex discrimination, the Religious Freedom Restoration Act exempted the funeral home from having to comply with non-discrimination laws.
The EEOC appealed to the 6th Circuit and in January 2017, the ACLU and the ACLU of Michigan filed a motion to intervene, because Stephens feared that under the Trump administration, the EEOC — a federal agency — might not adequately represent her in the case.
The appellate court overturned the lower court’s ruling, and Alliance Defending Freedom, an anti-LGBT group representing the funeral home, appealed to the Supreme Court, setting the stage for a showdown over the battle between LGBT equality and so-called “religious freedom” laws being pushed by right-wing conservatives emboldened by Trump’s 2016 election.
The brief filed last week urges the Supreme Court to hear the appeal and then reverse the circuit court’s ruling. Calling the appellate court’s decision “policy experimentation” and an “egregious error,” the brief goes on to insist that “sex” refers only to biological sex and should not be interpreted to include gender identity.
Other states signing onto the brief are Nebraska, Alabama, Arkansas, Kansas, Louisiana, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, Wyoming, Maine and Mississippi. While the attorneys general signed the brief in 13 of the states, in Kentucky, Maine and Mississippi it was the state’s governor that signed.
Among the 16, only Utah and Maine have state laws protecting LGBT people from employment discrimination.
According to information compiled by Catalyst.org, employment discrimination based on sexual orientation is banned in 72 countries. But the United States is not among those 72. As the Human Rights Campaign Foundation notes, there is no federal law protecting employees against discrimination based on sexual orientation or gender identity in the U.S.
HRCF also notes that 28 of the 50 U.S. states have no state laws prohibiting discrimination based on sexual orientation, and 30 of the 50 states have no protections based on gender identity.
“Discrimination in America: Experiences and Views of LGBTQ Americans,” a 2017 study by NPR, the Robert Wood Johnson Foundation and the Harvard T.H. Chan School of Public Health found that 20 percent of LGBTQ Americans have experienced anti-LGBTQ discrimination when applying for jobs. That same study found that LGBTQ people of color are more likely to experience such discrimination than their white counterparts.
The study also found that 22 percent LGBTQ people in the U.S. have been paid less and promoted less often than their equally qualified counterparts.
For transgender people, the discrimination is even worse. According to the 2015 U.S. Transgender Survey, conducted by the National Center for Transgender Equality, 27 percent of transgender people said they were either not hired or not promoted or were fired in 2015 because of their gender identity or expression.
And, the study found, 80 percent of those who were employed that year either experienced harassment or mistreatment on the job or had to take specific steps to avoid harassment or mistreatment.
According to the Human Rights Watch, so-called religious freedom laws are the latest effort by the right wing to circumvent non-discrimination laws. The most sweeping of these laws so far is Mississippi’s ”Religious Liberty Accommodations Act,” or the “Protecting Freedom of Conscience from Government Discrimination Act.” Passed in 2016 after the U.S. Supreme Court’s ruling in Obergefell v. Hodges recognizing marriage equality as law, the Mississippi Legislature enacted this law specifically protecting the belief that marriage is or should be recognized as the union of one man and one woman, that sexual relations are properly reserved to such a marriage, and that male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.
The law also prohibits the state government from taking “any discriminatory action” against a religious organization or individual regarding issuing marriages licenses, making employment decision, including those involving state employees, selling or renting housing, adoptions, refusal to participate in gender confirmation surgeries or therapy, use of so-called conversion therapy and more.
North Dakota, South Dakota, Virginia, Michigan, Alabama and, as of 2017, Texas all have laws allowing agencies dealing with adoption and foster care, even those receiving state and federal funds, to refuse to work with LGBT prospective parents.
And Tennessee has a law allowing therapists and counselors to refuse to work with clients “as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the counselor or therapist.”