Less than two weeks after he was inaugurated, Donald Trump did something that, at the time, seemed decent: On Jan. 31, 2017, the White House put out a press release promising to safeguard LGBTQ rights. Specifically, the memo claimed the new president would not overturn a 2014 Obama administration executive order protecting LGBTQ employees of federal contractors from workplace discrimination.
“President Donald J. Trump is determined to protect the rights of all Americans, including the LGBTQ community,” the memo stated.
Trump’s been gaslighting America on the subject of LGBTQ rights ever since. Through executive orders, agency rule-making and tweets, the Trump administration has been blasting away at the LGBTQ community from the start.
Now, the administration is ratcheting up the stakes, filing a series of briefs ― one late last week and one expected this Friday ― in a critical LGBTQ rights case scheduled to come before the Supreme Court this fall.
On Oct. 8, the court will hear oral arguments in a trio of cases considering whether the protections of Title VII of the 1964 Civil Rights Act, which prohibits discrimination on the basis of race, religion and sex, extends to sexual orientation and gender identity.
In Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda, gay men say they were fired because of their sexual orientation. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission takes up the case of a funeral director named Aimee Stephens who was fired from her job after transitioning to female.
To put it simply, the question before the court is: Can you be fired for being gay or lesbian or bisexual or transgender?
Last Friday, the Trump administration made it clear that its position is: Yes, you absolutely can.
The Department of Justice filed its brief in the Harris case, arguing that Title VII does not protect sexual orientation or gender identity. It argues that in 1964, when the law was passed, lawmakers considered the meaning of “sex discrimination” to be confined to women’s rights. It’s the kind of argument designed to appeal to conservatives.
If the court sides with the DOJ, that would make it easier to discriminate against LGBTQ Americans not just at work but in housing or health care or education, too. (Indeed, the administration has already taken steps in those areas.)
What’s more, the Justice Department’s arguments also jeopardize protections for anyone who does not conform to stereotypes about how men and women behave, said Chase Strangio, a staff attorney at the ACLU, which is working on the Supreme Court case.
“People don’t realize that the stakes are extending not just to the trans and LGB communities, but to every person who departs from sex stereotypes,” he said. “Women who want to wear pants in the workplace, men who want more childbearing responsibilities.”
“People don’t realize that the stakes are extending not just to the trans and LGB communities, but to every person who departs from sex stereotypes.”
That’s because the DOJ brief also takes aim at a major precedent established in the 1988 case of Price Waterhouse v. Hopkins that defined “sex discrimination” as including gender stereotyping. In that case, Ann Hopkins was denied a promotion to partner at consulting firm Price Waterhouse because she was viewed as too aggressive ― a trait prized at the firm when exhibited in men. The court found that this type of stereotyping fell under the definition of sex discrimination.
In the intervening years, the 6-3 decision has been used by men who were discriminated against for being too feminine ― and cited by the Department of Justice during the Obama years in broadening the definition of title VII to include transgender people.
(Ann Hopkins died last year, but her daughter is one of the thousands of people who’ve expressed their support for LGBTQ rights at the Supreme Court. Price Waterhouse has also come around since the 1980s and signed one of the amicus briefs supporting LGBTQ rights.)
All three cases before the court now rely on the Hopkins decision to show that discrimination based on sexual orientation or transgender status is a form of gender stereotyping.
Don Zarda, a skydiving instructor, was fired after revealing to a client that he had an ex-husband. Had he been a female instructor, telling a client about an ex-husband wouldn’t have triggered a dismissal. The difference, his lawyers argue, is sex. Zarda didn’t conform to the stereotype that a man must be married to a woman. (Zarda’s former employer says the firing was based on performance.)
In Stephens’ case, she’s being accused of violating the funeral home’s dress code. Had she been a cisgender woman, there would be no violation. Again, the difference comes down to sex.
In its brief, the Justice Department discounts that argument, claiming that discriminating against Stephens was OK because the funeral home owner, Thomas Rost, would’ve also discriminated against a transgender man.
Behind the veil of the strict constructionist argument, the DOJ’s brief is also sprinkled with hints of animosity toward trans people and imbued with overtones of religious righteousness ― taking care to mention Rost’s religious beliefs, even though they’re not part of his argument.
The brief makes sure to quote Rost’s assertion that allowing Stephens to present as a woman “would be violating God’s commands if [he] were to permit one of [Harris Homes’] male funeral directors to wear the uniform for female funeral directors while at work.”
Another friend of the court brief, from the Liberty Counsel, an evangelical nonprofit, explicitly tries to make a religious freedom argument in the case, arguing that prohibiting discrimination against LGBTQ people would violate the First Amendment rights of religious groups.
Using religion as a cloak for homophobia and transphobia is also part of the strategy at Trump’s Labor Department, which last week proposed a rule that would essentially make it easier for companies to discriminate against LGBTQ workers under the guise of religion.
“We are concerned about the trend of religious freedom being used as a sword rather than a shield.”
The Liberty Counsel, which has been deemed an anti-LGBT hate group by the Southern Poverty Law Center, hailed the move; while almost every civil rights group roundly condemned it.
Discriminating against minorities under the guise of “religious freedom” is “perverse,” said Scott Simpson, the policy advocacy director for Muslim Advocates, on a press call with representatives from eight civil rights and religious groups condemning the rule last week.
“This is yet another stain on religious freedom,” said Steve Freeman, the vice president of civil rights at the Anti-Defamation League, who was also on the call. “We are concerned about the trend of religious freedom being used as a sword rather than a shield.”
On Wednesday, a reporter at the Washington Blade asked Trump if he was OK with the administration taking steps to make it easier to discriminate against LGBT people in the workforce.
He didn’t answer the question. “I’ve done very well with that community and some of my biggest supporters are of that community, and I talk to them a lot about it. I think I’ve done really very well with that community,” he said. “They’re with me all the way, and they like the job I’m doing, and I just got a big endorsement from the Log Cabin group.”
It’s true: This week, the Log Cabin Republicans endorsed Trump for president in 2020.
But, as Michelangelo Signorile points out in The Washington Post, only 14% of LGBTQ voters actually voted for Trump in 2016. His continual gaslighting of the public on gay rights is more about appealing to straight voters than it is about actual civil rights, he argued.
“[T]he goal of occasional LGBTQ-friendly statements — and endorsements from groups such as the Log Cabin Republicans — appears to be to assuage straight voters who might be turned off by blatant anti-LGBTQ bigotry.”
Don’t be fooled.
CORRECTION: This story has been updated to note that the Supreme Court will hear oral arguments on Oct. 8, not Oct. 4.