26 NEWSWEEK.COM
JUSTICEThe Softball Player, the Skydiver, and the Funeral Director
courts do not decide legal issues in the abstract;
they address questions presented to them in specific lawsuits. So
before diving into the evolution of the law and the parties’ partic-
ular arguments, it is crucial to examine the facts of the particular
cases before the Court.
There are two involving sexual orientation (those of Zarda and
Gerald Bostock), which have been consolidated and will be ar-
gued together first, and one involving gender identity (that of Ste-
phens), which will be argued separately immediately afterwards.
In 2003, Gerald Lynn Bostock took a job as a child welfare ser-
vices coordinator in the Clayton County juvenile court system in
Jonesboro, Georgia, near Atlanta. For ten years he compiled an out-
standing record, his attorneys claim. In January 2013, however, he
started playing softball in a gay association known as the Hotlan-
ta League. This drew criticism, he claims, from people influential
with his employer, Clayton County. Three months later the county
audited Bostock’s unit and, that June, he was fired for “conduct
unbecoming of a county employee.” The county now claims that
Bostock had mismanaged funds. Bostock, now 55, denies the ac-
cusation, and denounces both the audit and its findings as phony
excuses manufactured to hide the real reason for his termination:
bias against his homosexuality. Bostock is appealing a ruling of the
U.S. Court of Appeals for the Eleventh Circuit, in Atlanta, which
affirmed the pretrial dismissal of his suit on the grounds that Title
VII did not bar discrimination on the basis of sexual orientation.
Meanwhile, in 2010, Donald Zarda was a skydiving instructor
for Altitude Express in Calverton, New York, on Long Island. He
often led “tandem” jumps, where he was strapped closely to the
customer. That June he was fired for, he was told, having shared
“inappropriate information” with a customer “regarding his per-
sonal life.” Zarda maintained that he told a woman client he was
gay in order to dispel the awkwardness of the tight physical con-
tact. Altitude asserts that, after the jump, the woman complained
of being “inappropriately touched” by Zarda, and that only then
did Zarda mention his sexual orientation. Zarda sued that Septem-
ber. In February 2018, the Second Circuit Court of Appeals in New
York ruled that his case could go forward to trial because Title VII
prohibits discrimination based on sexual orientation. (In October
2014, Zarda, then 44, died in Switzerland while engaged in the ex-
treme sport known as BASE-jumping—diving from a cliff wearing a
wingsuit. His executors, however, have continued to press his suit.)
Finally, there is Aimee Stephens. Then known as Anthony, she
was hired as a funeral director in Garden City, Michigan, near De-
troit, in October 2007. The employer, R.G. and G.R. Harris Funeral
Homes, was owned by Tom Rost, a “devout Christian,” according
to the employer’s attorneys. In late July 2013, while on vacation,
Stephens wrote Rost explaining that she had “a gender identity
disorder that [she] had struggled with [her] entire life,” and had,
with the support of her wife, decided to transition to a female
identity in anticipation of eventual reassignment surgery. When
she returned to work, she wrote, she would be using the name Ai-
mee and dressing in a skirt suit, in accordance with Harris Homes’
dress code for women. Rost fired her two weeks later, before her
scheduled return, explaining that it was “wrong for a biological
male to deny his sex by dressing as a woman or for a biological
female to deny her sex by dressing as a man,” Stephens alleges. Rost
also said that customers “don’t need some type of a distraction”
and that her “continued employment would negate that.”
Initially, during the Obama admin-
istration, the EEOC took Stephens’
case and sued Harris Homes on her
behalf. But after Donald Trump took
office, the EEOC reversed its position,
and it now supports Harris Homes. In
May 2018, the U.S. Court of Appeals
for the Sixth Circuit, in Detroit, ruled
that Stephens’ case could go to trial be-
cause, in its view, Title VII does bar dis-
crimination based on gender identity.CHANGING FACES
Clockwise from right:
Skydiving instructor
Donald Zarda; John Lewis,
left, and his husband
Stuart Gaffney, who
challenged California’s
laws in 2008, celebrate
after the U.S. Supreme
Court ruled in favor of
same-sex marriage; Brett
Kavanaugh sworn in by
Justice Anthony Kennedy.