It is unknown if the Supreme Court will finally issue a ruling on Thursday about whether it is legal to fire LGBTQ people on the basis of their sexual orientation or gender identity. It is also unknown if Aimee Stephens will be alive to hear their decision.
Stephens, 59, is presently receiving end-of-life hospice care at home in Michigan, her wife Donna at her side.
Stephens’ is one of three cases before the court, bought on behalf a trio of LGBTQ people—Stephens, the family of Donald Zarda, and Gerald Bostock—who claim they were fired because of their gender identity or sexual orientation. Their lawyers argue that Title VII of the 1964 Civil Rights Act, which prohibits workplace discrimination based on sex, also applies to discrimination against LGBTQ people.
Their former employers and the Trump administration disagree. The case is a test of whether a rightward-tilting SCOTUS will vouchsafe equality for LGBTQ Americans or seek—in the spirit of the present administration—to undermine it.
About five years ago, Stephens developed kidney disease that required frequent dialysis. A GoFundMe campaign, launched to support Donna and Stephens’ other loved ones to cover the costs of her care and eventual funeral, states: “Her health continued to deteriorate and she is now in stage four renal failure. She has discontinued dialysis… Sadly it appears that Aimee will never see the result of her valiant and difficult fight for transgender rights.”
In a statement issued Monday, Donna Stephens said: “Thank you from the bottom of our hearts for your kindness, generosity, and keeping my best friend and soulmate in your thoughts and prayers. Aimee is an inspiration. She has given so many hope for the future of equality for LGBTQ people in our country, and she has rewritten history. The outpouring of love and support is our strength and inspiration now.”
Chase Strangio, deputy director for trans justice and a member of Aimee Stephens’ legal team with the ACLU’s LGBT & HIV Project, said: “It has been devastating to learn about Aimee’s declining health. The entire ACLU family is thinking of both Aimee and her wife, Donna. We will continue to seek their guidance on the type of support they want and need.
“An opportunity to share a positive message with Aimee—a woman who has inspired millions—should be announced soon. No matter what the Supreme Court decides, Aimee has earned a place in history. I have been honored to be on her team and to learn from her and her incredible advocacy.”
A video, with messages of support from Stephens’ supporters (including well-known advocates like Laverne Cox), will be released imminently, after being played for Stephens herself at home, said Jay Kaplan, Stephens’ friend and staff attorney for the ACLU of Michigan’s LGBT Project.
Kaplan told The Daily Beast that Stephens had “expressed a number of times” that she hoped to live to hear SCOTUS’ decision but had “a lot of health complications” and had recently suffered a couple of falls.
Kaplan last spoke to Stephens two weeks ago, to discuss her work for LGBTQ elder advocacy group SAGE Metro Detroit, whose board Stephens had recently joined. “She was very much looking forward to work for transgender older people,” said Kaplan.
Stephens told Kaplan that staff from the hospice were about to visit the house. “She was emotional about it, understandably,” Kaplan recalled. “Aimee is now resting most of the time. The nurses have said it could be any day now and have said that now might be the best time for loved ones and family members to say goodbye. They will probably be increasing pain medication over the next couple of days.”
Kaplan said that whatever SCOTUS’ decision is, Stephens is determined that the fight for transgender equality, and LGBTQ equality generally, continue. “She read all the legal briefs and thought the cases had been presented well. Her opinion has always been: ‘Put up a fair fight. If the Supreme Court doesn’t get it, we will fight on,’ and make sure that other trans people don’t have to go through what she did, and be fired for who they are.”
Prior to SCOTUS hearing the three cases on Oct. 8 last year, Stephens described what had happened to her in a powerful interview with The Daily Beast.
After contemplating suicide in November 2012, Stephens had informed her boss, via letter, that she was transgender and would henceforth be dressing according to the firm’s female dress code.
She was no longer willing, she told The Daily Beast, to lead “two different lives, one for work and one for home.”
For the previous six years, Stephens had worked as a funeral director for R.G. and G.R. Harris Funeral Homes in Michigan. Stephens claimed she was fired after her boss read the letter.
In March 2018, the Sixth Circuit Court of Appeals ruled that Stephens—whose case is being supported by the ACLU and the Equal Employment Opportunities Commission (EEOC)—was unlawfully fired and that federal sex discrimination laws protect transgender people. The funeral home is challenging that ruling at the Supreme Court.
“Unfavorable treatment of a gay or lesbian employee as such is not the consequence of that individual’s sex,” the Justice Department has argued, “but instead of an employer’s policy concerning a different trait—sexual orientation—that Title VII does not protect.”
The Department of Justice also filed an amicus brief in support of Stephens’ employer, meaning that the federal government—as well as arguing it should be legal to fire and discriminate against someone just because they are transgender—is effectively arguing against itself, as the EEOC is on Stephens’ side.
Prior to SCTOUS hearing the case, Ria Tabacco Mar, senior staff attorney with the ACLU’s Lesbian Gay Bisexual Transgender & HIV Project, told The Daily Beast: “I certainly know better than to predict what the Supreme Court is going to do, but I do think LGBT folks have reason to be optimistic here. I think we’re right on the law. Title VII of the Civil Rights Act prohibits discrimination because of sex, and I think as the lower courts rightly recognized, it is impossible to disentangle discrimination because of sex and discrimination because of sexual orientation.”
Over 200 well-known American businesses have submitted testimonies to the Supreme Court arguing in the LGBTQ employees’ favor in their cases.
When we spoke last September, Stephens told me she was “hanging in there.” She had a terrible cough and was resting after one of her regular dialysis treatments, her kidneys having failed in 2014. “I’ve had a few good days in the last week, so all in all I’m OK,” said Stephens. “It’s very draining. I come home exhausted and take a nap after each treatment. I guess I will be on dialysis as long as I live.”
Getting fired from the funeral home “bothered me a lot,” said Stephens, “because I had been doing my job and doing it well, and I didn’t understand why what was happening had any effect on my job performance. Basically, they fired me because I was transgender.”
In a lower court, Stephens discovered her employer had used the reasoning that she didn’t adhere to the dress code.
“I was perfectly willing to adhere to the women’s dress code. His problem was he didn’t see me as a woman. He saw me as a man, and therefore if I did not wear a coat and tie, I wasn’t adhering to his dress code. He never got to see me as a woman.”
“Aimee knew what wasn’t fair. Her firing was a wrong that needed to be righted”
On Monday, Kaplan recalled to a reporter leaving the Supreme Court after the presentation of arguments last Oct. 8.
“The most amazing thing for Aimee—and it had been a few days of incredible things and experiences—was leaving that building and having thousands of people cheering for her and showing their support,” Kaplan told The Daily Beast. “It touched her so much. I asked her what the highlight of the last few days had been, and that had most moved her.”
Stephens had also been moved, said Kaplan, by the many well-wishers, who had written to her or made videos for her, thanking her for the stand she was taking.
“Through the whole process, Aimee felt this was not only her story but the story of so many other transgender people. Her job in this case, in her view, was to benefit the entire community. To hear support from so many people was very meaningful and moving for her. She was a shy person but really blossomed as a spokesperson.”
Kaplan noticed, having sat with Stephens through many media interviews, that she did not just repeat the same quotes over and over again. “She always found something slightly different to say to each reporter,” Kaplan said. “She reminded me that she originally studied to be a minister, so doing sermons came naturally to her.”
The day before the Supreme Court hearing, Kaplan recalled Stephens giving 10 back-to-back interviews before feeling too sick to carry on. “Aimee summoned whatever strength and energy she had, because that was the commitment and energy she felt towards this case. She knew what wasn’t right. Aimee knew what wasn’t fair. Her firing was a wrong that needed to be righted.
“She did her job well, and she was proud of how she did it. It was part of her identity. It was part of her mission to make the grieving process easier for families. The SCOTUS case was another mission—to right a wrong and make things better for the transgender community. That’s quite a legacy.”
At this moment, Kaplan said, Stephens has “held out” for as long as she could, awaiting word from SCOTUS. “I hope she is at peace, resting comfortably, and when she feels ready to let go will let go.”
“Aimee is a very spiritual person,” said Kaplan. “She knows about religion and has seen a lot of death too. I think she has a healthy outlook on this, it is not necessarily a fear for her. One time we were discussing it, she mentioned the issue of being able to pay for her funeral. I think she knew this was always a possibility.
“From my interactions with her, I found her a very calm person, a person who knew who she was and what she was about. Since coming out and living her authentic life 24/7, there was a sense of confidence about her too.”
That confidence was clear during our conversation last September. Stephens told me she hoped that the Supreme Court justices would look at the history of favorable lower court rulings, uphold those rulings, and “once and for all say there are protections for LGBTQ people. I hope they recognize the protections are there and that being transgender is not new. We’ve always been here. It is just now there’s enough of us to come forth and that it’s open for discussion.
“We’re human beings. We deserve the same basic human rights as everyone else has. That’s all we’re asking for. We are not asking for anything special. We just want the basic human rights that we should already have anyway.”
“If I had to do it all over again I would,” Stephens told me. “And to other transgender people on the verge of coming out, wondering what to and how to do it, I would say, more than anything else you have got to be true to yourself. If you can’t be true to yourself, you’re not only not going to be true to yourself, you’re not going to be true to anybody or anything else. It’s not easy, it never will be, but it’s something that’s worth it in the end.”
