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LGBTQ Advocates Flood Capitol Hill on Day One of Supreme Court's First Trans Civil Rights Case in US History

"We are here. No one can take that away. #RiseUpOct8"

LGBTQ rights advocates

LGBTQ rights advocates rallied outside the U.S. Supreme Court in Washington, D.C., Oct. 8, 2019, as the court heard oral arguments in three cases dealing with workplace discrimination based on sexual orientation. (Photo: Saul Loeb/AFP via Getty Images)

Civil rights advocates rallied on Capitol Hill Tuesday as the U.S. Supreme Court heard oral arguments for three related cases—including its first on trans rights—in which, as the ACLU put it, "the Trump administration is urging the court to rule that it's legal to fire workers for being LGBTQ."

The ACLU is counsel in Aimee Stephens' case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (EEOC), and Donald Zarda's case, Altitude Express v. Zarda—the latter of which has been consolidated with a third case, Bostock v. Clayton County, Georgia. Stephens was fired because she is a transgender woman. Zarda and Gerald Bostock were fired because they are gay men.

"For the LGBTQ civil rights movement, this is a big moment," James Esseks, director of the ACLU's LGBT & HIV Project, wrote in a blog post Tuesday. "There is an enormous amount at stake."

Esseks explained:

LGBTQ people could lose protections against discrimination that they have relied on in many cases for two decades. Going back to 2000, federal appeals courts have ruled that anti-trans discrimination is a form of sex discrimination that violates federal law, providing a remedy for trans workers fired for who they are. The Equal Employment Opportunity Commission, tasked with enforcing the federal workplace nondiscrimination law, agrees that anti-LGBTQ discrimination is a form of sex discrimination, and has recovered millions of dollars for LGBTQ workers who sued over discrimination.

And a decision in these cases could affect LGBTQ people in contexts well beyond just the workplace. LGBTQ people have relied on federal protections against sex discrimination to redress housing discrimination, to combat discrimination in schools, and to remedy discrimination in healthcare. All of these protections could be swept away if the court deletes LGBTQ people from the existing scope of the federal civil rights laws.

A ruling in these cases could affect non-LGBTQ people as well. A crucial Supreme Court precedent for Aimee and Don's cases is that of Ann Hopkins. As an employee at accounting firm Price Waterhouse, Hopkins was passed over for partner and told she could increase her chances if she would "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." The Supreme Court ruled that requiring her to conform to stereotypes associated with being a woman demonstrated sex discrimination.

Nondiscrimination statues at the federal level and in most states "do not expressly enumerate sexual orientation and gender identity as protected characteristics," but 22 states and the District of Columbia "expressly enumerate either or both of these characteristics in their nondiscrimination statutes, although not necessarily in all settings," according to (pdf) the Williams Institute at the UCLA School of Law.

The Supreme Court must now decide whether Title VII of the 1964 Civil Rights Act—which bars employment discrimination on the basis of sex, race, color, national origin, and religion—applies to sexual orientation and gender identity. In May, the Democrat-controlled U.S. House passed the Equality Act, which would amend the Civil Rights Act and other federal legislation to strengthen LGBTQ people's protections from discrimination, including in the workplace. However, the bill now faces a Senate that some call Republican Majority Leader Mitch McConnell's legislative "graveyard."

Especially in the absence of progress in Congress, rights activists and legal experts expect the right-wing high court's decisions on these three cases to have a national impact. In a climate where President Donald Trump's administration has repeatedly attacked the rights of LGBTQ people, particularly those of trans individuals, advocates warn the stakes are incredibly high.

Chase Strangio, deputy director for transgender justice with the ACLU's LGBT & HIV Project and counsel for Stephens' case, wrote in an op-ed for The Washington Post on Sunday that this case "is deeply personal to me" because "like Aimee, I am transgender."

With these cases, Strangio continued, "the employers and the Trump administration have defended the firing of LGBTQ people by raising specious arguments about what it would mean to include us in the workplace and in public life. Particularly with respect to transgender people, Aimee's former employer's briefing goes so far at times to suggest that it is dangerous to let us be who we are—that somehow firing us is for our own good."

Strangio was part of a conversation outside the Supreme Court Tuesday morning, before oral arguments, in which actress and LGBTQ advocate Laverne Cox told Stephens, "you're making history no matter what happens."

Hundreds of people gathered around the court building Tuesday as the ACLU legal team headed inside to face a high court that has shifted to the right during Trump's term with the additions of Justices Neil Gorsuch and Brett Kavanaugh. The New York Times noted that "the court has not heard a gay rights case since the retirement last year of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court's major decisions protecting gay men and lesbians, including the 2015 ruling that established a constitutional right to same-sex marriage."

"Today, nine Supreme Court justices will have the basic rights of every LGBTQ American in their hands," Mara Keisling, executive director of the National Center for Transgender Equality, said in a statement Tuesday. "For many trans people, this may be an alarming prospect. Some of these justices have a worldview that doesn't include transgender people at all. But after 20 years of working to fulfill the dream of transgender equality, I can tell you that we have never had a better chance to make our dream a reality."

"I am here because I'm a queer person and right now my right to live my life as everyone else is being determined by nine people, none of whom are queer, all of whom are cisgender," 21-year-old Raegan Davis told Reuters Tuesday. "I feel like it's important for our voices to be part of this conversation because if we aren't here there's no guarantee that they will."

Activists, policymakers, and reporters shared updates from the rally and voiced support for the LGBTQ plaintiffs of the cases on social media with the hashtag #RiseUpOct8.

Several Democrats in Congress—including some seeking the party's presidential nomination for the 2020 race—took to Twitter Tuesday to draw attention to the Supreme Court cases. Rep. Barbara Lee (D-Calif.) reiterated her support for the Equality Act.

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