Aimee Stephens
Courtesy of the American Civil Liberties Union
By Jennifer Calfas
July 3, 2018

Aimee Stephens’s battle isn’t over.

The 57-year-old former funeral home director has been in a legal battle for years, since, she says, she was fired from her Detroit-area job shortly after she told her boss in 2013 she was a transgender woman and would start dressing as such. After her termination, Stephens says, she struggled to find a job — and once she got one as an autopsy technician in a Detroit hospital, her health began deteriorating. Stephens now has kidney failure, requiring her to undergo dialysis three times a week, and suffers from respiratory issues.

After she was fired from her job, the Equal Employment Opportunity Commission sued the funeral home in 2014 on her behalf — and the ensuing legal battle that could ultimately make its way to the Supreme Court by its next term.

“Just waiting for a positive outcome on this case is what really keeps me going day after day,” Stephens tells TIME “It’s not just for myself, but it’s also for all the other trans people in the world. Not just trans people, but also for all LGBTQ+ people.”

She got her first victory in court in March when a U.S. Court of Appeals for the Sixth Circuit ruled in her favor, joining several other courts in setting a precedent for the questions of whether the Civil Rights Act of 1964 protects transgender workers from discrimination and whether religious freedom could provide employers exemption from this law.

And while Stephens and her lawyers were expecting legal hiccups, Justice Anthony Kennedy’s announcement last week that he was retiring from the Supreme Court at the end of the month puts Stephens’s case and other future LGBTQ-related cases in a precarious place, lawyers and advocates tell TIME. Kennedy was a crucial swing vote, particularly when it came LGBTQ rights-related cases — and most notably cast the deciding vote for the landmark 2015 decision that made same sex-marriage legal in the U.S.

“I wish he could’ve waited several years to retire, but, you know, what happened to me hurt. And it was a lot,” Stephens says. “It was wrong, and I’m hopeful that anyone, including a new Supreme Court justice, would see that and act accordingly.”

Stephens’ years-long journey shows a glimpse of what many LGBTQ individuals face — or could face — without federal laws protecting them from workplace discrimination. People who identify as gay or transgender can be fired in the majority of states in the U.S. — only 21 states and Washington, D.C., have laws that prohibit discrimination due to sexual orientation and gender identity, according to the Human Rights Campaign.

The central issue rests on whether Title VII of the Civil Rights Act of 1964, which protects discrimination based on “race, color, religion, sex or national origin” also covers sexual orientation and gender identity. It also questions whether the Religious Freedom Restoration Act (RFRA), a federal law with similar state-specific guidelines that protects religious freedom, can subsequently exempt employers from abiding by these protections.

Attorneys arguing on behalf of LGBTQ individuals in cases like Stephens’s have relied on an interpretation of the Civil Rights Act that includes sexual orientation and gender identity (or both) under the prohibition of discrimination based on “sex.” Those on the other side have also used the RFRA — which initially came into law two decades ago to protect minority religious groups in the U.S. — to argue that employers can claim religious opposition to hiring a person because they are transgender or gay. Lower court rulings and case law have produced a smattering of results and interpretations of what is defined by “sex” under the federal law, and, under the Trump Administration, Attorney General Jeff Sessions said last year the Justice Department would take the position that LGBTQ individuals are not protected under federal civil rights laws. Separate from Stephens’s case, the U.S. Court of Appeals for the Second Circuit ruled in a different case that the Civil Rights Act should be extended to include sexual orientation.

“We are building the biggest body of love that we can when this issue makes its way to the Supreme Court,” said Rachel Tiven, the CEO of Lambda Legal, which is representing a number of other individuals in similar cases to Stephens’.

It’s possible Stephens’s case could make it to the Supreme Court as early as this next term if her former employer, R.G. and G.R. Harris Funeral homes, which is represented by the Christian conservative nonprofit Alliance Defending Freedom, appeals the case and petitions the high court’s next term. In May, the organization, along with a Michigan-based attorney, requested an extension to the Supreme Court to file a petition for the court to review the case. And they plan to file the petition before the deadline, Jim Campbell, a senior counsel for the Alliance Defending Freedom representing the funeral service, wrote in an email to TIME. “We are hopeful that the Supreme Court will take the case, interpret Title VII consistently with the clear language that Congress enacted, and reverse the Sixth Circuit’s attempt to rewrite that law,” Campbell said.

With Kennedy out, Trump has moved quickly to consider nominees with the hope of a swift confirmation process — likely cementing a conservative majority on the Supreme Court. The President’s list of potential nominees includes a few with a history of favorable rulings for the LGBTQ community, according to James Esseks, director of the LGBTQ & HIV project at the American Civil Liberties Union, which now represents Stephens. “This idea that the federal civil rights laws protect LGBT people from discrimination is not even a left or right thing,” Esseks said. “It’s something about the basic norms of protecting people from discrimination that we all share.”

Kennedy’s rulings on LGBTQ-related issues — though wide-ranging — resulted in key decisions that altered the lives of those most impacted. His closing paragraph in his Obergefell v. Hodges opinion is often cited in marriages across the country — including those officiated by James Obergefell, the namesake of the case, himself. “To say I feel it in the pit of my stomach now that he is leaving the bench is an understatement,” Obergefell wrote recently in TIME.

Kennedy “took us on an incredible journey from a place where we were viewed as criminals under the law to the place where we can marry the people we most love in the world,” said Esseks, of the ACLU. “The prospect of having a new justice who may not share those values and that view is concerning,” he added.

Of course, Kennedy’s rulings on LGBTQ rights varied over the years. Most recently, in the case where a baker at Colorado’s Masterpiece Cakeshop case refused to decorate a wedding cake for a gay couple, Kennedy wrote the court’s majority opinion — a narrow decision that ruled the civil rights commission that considered the case before them exhibited anti-religious bias. The Alliance Defending Freedom, defending the funeral service in Stephens’s case, cited Kennedy’s Masterpiece Cakeshop stance as one to remember, rather than his Obergefell v. Hodges ruling, of which the organization said it “respectfully” disagrees. In a new judge, the organization said it hopes Trump will appoint someone with a strict interpretation of the law who “will uphold the First Amendment and the original public meaning of the Constitution.”

As for Stephens, she hopes a new justice will consider cases “with the one thought in mind that we’re all human beings.” Although her fight over the last few years has been riddled with health concerns and highs and lows, Stephens says she feels comfortable and supported with who she is — and has found a new calling as the face of a potentially historic case.

“Sooner or later someone comes along who has to be willing to fight for that cause and do what it takes in order to accomplish our goals,” Stephens says. “And I set out to be that person if I could be.”

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