Today, the Supreme Court will hear arguments in three cases in which the Trump administration is urging the court to rule that it’s legal to fire workers for being LGBTQ.

For the LGBTQ civil rights movement, this is a big moment. These cases will affect more people than the Supreme Court’s decision about the freedom to marry, and they potentially implicate a broader range of contexts in which LGBTQ people may face harm, if the Court green-lights discrimination. Worse still, a bad ruling would strip away protections against discrimination that LGBTQ people have been able to use to protect themselves for two decades. And all this in a context where nearly one in three transgender people has experienced discrimination in the workplace.

In short, the stakes are very high.

One of the cases is about the rights of transgender people and involves Aimee Stephens, who worked for nearly six years as a funeral director at a funeral home near Detroit. Earlier in her life, Aimee had considered going into the ministry, but then found her calling in funeral services, where she could help comfort people in a time of great need. Her employer knew her as a man, but Aimee knew from five years old that she was female. After decades of hiding who she really was, Aimee could bear it no more, realizing that the only way to live was as her true self. She gathered the strength to come out to her family, friends, and co-workers as a woman. When she introduced herself as Aimee to her boss, he fired her. He made no pretense about any performance reason; he openly admitted that it was because she is transgender, saying, “this isn’t going to work out.”

The other two cases both involve men who were fired because they are gay. In one case, Gerald Bostock was fired from his job as a social worker for at-risk youth after his employer found out he was gay. The third case involves is Don Zarda, who worked as an instructor for a skydiving outfit on Long Island, New York. Don had become hooked on skydiving years earlier, and it evolved from being his passion to being his profession as well. He loved introducing others to the sport. Don often took customers on tandem jumps, where they are strapped to him shoulder-to-shoulder and hip-to-hip before they jump from the plane. One day, Don told a female customer that he was gay in an effort to make her less uncomfortable with how close they were physically. He thought nothing of the remark, but his boss later fired him for sharing “inappropriate information” with a customer.

When Don called his sister Melissa to tell her he’d been fired, her first reaction was surprise and disbelief. “It’s not legal to fire you because you’re gay,” she told him. And she’s right. Lower courts in both Don’s and Aimee’s cases ruled that their firings violate federal civil rights law, because the employers treated them differently because of their sex. After all, the courts reasoned, if Aimee had been assigned a female sex at birth, her employer would not have fired her for being and living as the woman she is. And if Don had been a woman attracted to men, as opposed to a man attracted to men, he would not have been fired for sharing that information with a customer.

Big picture: it’s hard to see how firing someone for being LGBTQ doesn’t involve the person’s sex. You can’t even describe being trans or gay without talking about the individuals’ sex. At its core, the federal ban on sex discrimination is simple: workers are not supposed to be treated differently because of their sex.

There is an enormous amount at stake in these cases. 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 non-discrimination 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 health care. 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.

Many federal courts have concluded that firing LGBTQ people because we don’t meet employers’ stereotypes of how women and men should act, identify, and appear is just as much sex discrimination as passing over Ann Hopkins because she was considered “macho.”

But if the Supreme Court says in Aimee’s and Don’s cases that this reasoning doesn’t apply to LGBTQ people, that could spell trouble for everyone. We could return to a world where employers can fire anyone — straight or gay, transgender or not — for not being the “right kind” of woman or man. Scary stuff.

The ACLU is proud to represent Aimee and Don, and to fight alongside Gerald, as we urge the Supreme Court not to roll back the rights of LGBTQ people and not to eviscerate sex discrimination protections for everyone else in the process.

James Esseks, Director, ACLU Lesbian Gay Bisexual Transgender & HIV Project

The view from the Matamoros, Mexico side of the Rio Grande — just across from Brownsville, Texas — reveals an unsettling scene.

Young women and children bathe openly in the murky green water, while others wash their clothes on the bank of the river that has claimed so many lives – most recently those of Idalia and her 21-month-old son Iker. This is the new painful reality of seeking asylum in the United States.

These families are not at the river by choice. They are being forced to wait in perilous conditions as a result of the Trump administration’s forced return to Mexico policy, which it perversely calls the Migrant Protection Protocols (MPP). 

Under the policy, which the ACLU and partners are challenging in a federal lawsuit, people fleeing persecution and legally seeking asylum in the U.S. are forced to wait in Mexico for months on end while their cases proceed in U.S. immigration courts. The Trump administration wants people to think that the policy is benign, but that couldn’t be further from the truth. Since going into effect earlier this year, MPP has been actively putting the lives of asylum-seekers in grave danger. For the most vulnerable people, including pregnant women, young children, and babies, this danger is particularly acute.

Women, children, and men bathing on the Mexican side of the Rio Grande, just across from Brownsville, Texas.

Recently, an 18-year-old Ecuadoran woman named Carolina,* who is more than four months pregnant, was sent to Mexico for a second time after attempting to legally claim asylum in the U.S. She was immediately placed into MPP and returned to Nuevo Laredo, Mexico, a city which according to the U.S. State Department is as dangerous as Afghanistan or Syria. A foreigner to Mexico, she had no safe place to go or community to which to turn. Alone, pregnant, and vulnerable, she was kidnapped and threatened with being sold or killed unless her family paid a ransom.

Carolina was eventually released by her kidnappers. Traumatized, she again returned to the international bridge in Laredo, Texas seeking safety that she believed only the U.S. could provide. But the kidnapping and fear of death was not enough for Customs and Border Protection (CBP) agents. They instead sent her to the same city where she had been kidnapped, failing even to refer her to an asylum officer to have her fear of returning to Mexico evaluated. 

In Mexico, Carolina fearfully stayed close to the gates of the port of entry, terrified that local cartel scouts were waiting to kidnap her again. Thankfully, Carolina’s family had contacted advocates who tried to get her released from MPP. They were unsuccessful, but were able to help Carolina flee to Mexico City for safety. There, she is currently waiting for her next immigration court date — set to occur in an ad hoc “tent court” in Laredo, Texas — hundreds of miles from Mexico City and just across the river from where she almost lost her life.

Hundreds of heartbreaking stories, just like Carolina’s, began to surface immediately after this policy went into effect in January 2019, and more so after the rapid expansion of the policy to Laredo and Brownsville, Texas in July. Nearly 50,000 people have been placed into MPP so far. One woman interviewed by attorneys described a CBP officer telling her she should abort her unborn child because “Trump didn’t want any more pregnant people here.”

A young pregnant mother holds her toddler in a makeshift migrant encampment created to house asylum seekers sent back to Mexico as a result of the “Remain in Mexico” policy.

MPP is part of a consistent pattern of xenophobic and racist efforts by the Trump administration and the Department of Homeland Security (DHS) officials to prevent people from lawfully being granted asylum in the U.S. Instead of welcoming asylum-seekers, as the U.S. has successfully done for decades, the Trump administration has engaged in a campaign of misinformation to provide cover for unlawful policies against people fleeing persecution. 

This inhumane policy is not aimed at any national security interest or protecting us from serious criminals; it’s an attempt to make it nearly impossible for anyone, no matter what terror they’re fleeing from, to enter into the U.S.

MPP’s impact has been made even worse due to how federal agents are executing it. DHS is well aware that there are populations with special needs that should be exempt from MPP. In fact, it has written guidelines that outline the exemption of vulnerable people — specifically pregnant women — from being forced back into Mexico.

And while DHS knows that northern Mexican border cities are incredibly unsafe, particularly for migrants and asylum-seekers who are unable to defend themselves from being victimized, it continues to send the most vulnerable back to danger. In fact, it has been well documented that asylum-seekers subjected to MPP have faced rape, kidnapping, assault, extortion, and death after being forced to return to Mexico

The policy has also forced migrants and asylum-seekers to live in squalid conditions without access to proper housing, food, or sanitation. This has caused outrage in the medical community. Physicians for Human Rights has publicly warned that the health and lives of mothers and babies are at risk due to grossly unhygienic living conditions, insufficient nutrition, lack of medical care, and inadequate access to potable water at makeshift encampments of people forced into MPP.

The safety and health conditions that pregnant women are forced to endure while languishing in Mexico are abhorrent and unacceptable. And it is happening right at our doorstep.

That is why the ACLU of Texas and ACLU Border Rights Center interviewed 18 pregnant women, including Carolina, and filed an official complaint with the DHS Office of Inspector General, demanding a return to safety inside the U.S. for all pregnant women in MPP. 

Each of the women listed in the complaint have their own harrowing story of legally seeking refuge in the United States, and instead being cruelly denied protection and sent to Mexico without any regard for their safety.  

MPP must end. Every day it is in effect, lives are in imminent risk. In the meantime, the special exemptions for pregnant women and other vulnerable groups must be followed by U.S. immigration authorities. Because what happens along the Rio Grande and the entire borderlands reflects on the conscience of our entire nation. 

*Carolina is a pseudonym used to protect the asylum seeker from reprisals.

Rochelle Garza, Staff Attorney, ACLU of Texas

Police departments around the country are beginning to deploy “Rapid DNA” machines, which can take a cheek swab or other genetic sample and automatically generate an identifying DNA profile. These machines cost as little as $30,000 and claim to take just 90 minutes. They handle some of our most sensitive information (our DNA) — and yet their design and use is largely unregulated. That should be cause for concern for several reasons.

First, Rapid DNA machines are likely to increase the risk of misidentification and wrongful conviction. Even traditional DNA analysis — which is typically done by trained professionals according to rigorous protocols in accredited laboratories — has led to terrible scandals and errors. For Rapid DNA machines — which police officers operate in precinct houses, without clear protocols, and after at most just a few hours of training — the risks of such injustices are even higher. Limited pilot studies have already raised concerns about the machines’ accuracy, including their failure to produce usable profiles, contamination of samples due to leaks in the machine, and the generation of at least one faulty profile.

These machines are also being used by police in ways they aren’t intended for.  They were designed to test samples taken from individuals for identification purposes, but local police departments are already deploying them on crime scene evidence, which is often far more complex. Such samples often include DNA that may be damaged or degraded, is present only in low amounts, or mixes many people’s genetic material. The FBI’s expert “Scientific Working Group on DNA Analysis” sternly warns that only a trained forensic DNA analyst can interpret crime-scene samples, and that Rapid DNA machines should not be used on them. The scientists also point out that “crime scene samples are often irreplaceable, and Rapid DNA instruments consume the entire sample.” The National District Attorney’s Association takes a similar position. But local police are not listening.

Second, “cheap and easy to use” is a perfect recipe for overuse, particularly when it comes to sensitive technologies in the hands of the government. We have seen this dynamic with cell phone location tracking, face recognition, and communications eavesdropping: intrusive information collection that was once subject to “natural limits” because it was expensive gets deployed far too broadly when new technology makes it cheap. Rapid DNA machines are likely to have this effect. Our DNA is far more than a replacement for the fingerprint; it is the “nuclear weapon” of identifying technologies. It can reveal much more — and more intimate — information than simply our identity, including our propensity for certain diseases, our family members, and our ancestry. And, as technology develops, DNA may reveal even more.

Third, Rapid DNA machines are likely to encourage the growth of government DNA databases, putting some of our most sensitive information in government hands. It also raises the likelihood of false hits. Even before Rapid DNA machines, we were seeing local police departments asking too many people — even kids — to provide DNA samples. This cheaper, faster technology — combined with the fact that many states have expanded their laws to authorize DNA collection from those who have merely been arrested — is only likely to exacerbate the problem. According to reports by the New York Times and other outlets, the FBI is working to enlist these machines into a national pipeline that will pour into its centralized DNA database, CODIS. And these machines are also likely to incentivize the growth of rogue DNA databases, which are maintained at the local level with far fewer quality, privacy, and security controls than federal databases.

Fourth, the easy availability of DNA testing through these machines is likely to exacerbate existing problems with the criminal justice system, including racial disparities in DNA collection that exist because our criminal justice system disproportionately suspects, arrests, and convicts people of color — and collects DNA from them accordingly. Rapid DNA machines may also encourage police attempts to obtain DNA without a warrant, including through pretextual arrests and the collection of so-called “abandoned” DNA that we all scatter around as we live our lives (for example on the things we touch and eat).

Recommendations

Given these risks, policymakers at all levels should think hard about whether it is appropriate to allow police departments to deploy Rapid DNA machines. Where police departments have already acquired them or been permitted to do so, measures (some which we have discussed previously) must be taken to guard against the pitfalls discussed above, including:

• Strict quality controls. The FBI is currently crafting use standards for Rapid DNA machines that will feed into CODIS. But local police departments are already using the machines outside of any standards. State lawmakers should look at this issue promptly and impose quality controls, including training and validation standards, to prevent sloppy use from creating injustices.
• Formal acquisition, use, and retention restrictions. This technology demands formal, legally binding restrictions on the collection, use, and retention of DNA. This should include regulations that: limit use to individuals who police have probable cause to believe committed a crime; ensure that the samples and results will be used only for their intended purpose; guarantee individuals whose DNA is collected and tested a right to access their results; and ensure expungement as soon as a person’s DNA data is no longer needed for the purpose that justified its collection.
• Limitation on “voluntary” collection. Collection of DNA should not be based on the fiction that submission is “voluntary” — that people are free to refuse police officers asking them for a biometric reading. Police officers have significant power and discretion in their encounters with us, and few such encounters are free from coercion. The New York Times story clearly showed such abuse in action; in the Pennsylvania town they profiled, where police must obtain consent from those under arrest, 90 percent of individuals asked agreed to hand over a sample. Officers explained that away with “criminals do stupid things,” but more likely most of those people did not feel they had a choice. Even people with more privilege may fear saying “no” to a police “request” that sounds an awful lot like a demand. No one should have to identify themselves to the police if they’re not suspected of a crime — and certainly should not be asked to turn over their DNA.
• Democratic control. Many local departments purchase surveillance technologies using DHS or DOJ grants that circumvent the local democratic budgetmaking process. And at least one town profiled by ProPublica paid for its DNA database with funds acquired through police banditry (aka “civil asset forfeiture”). No police department should spend money on this technology — no matter its source — without permission from its city council, county board, or other democratically elected oversight body. That is true even in jurisdictions that have not yet passed the “Community Control Over Police Surveillance” (CCOPS) legislation that the ACLU recommends.
• Transparency. Democratic control over police technology is impossible if communities don’t know what their officers are using and how. Legislators should ban nondisclosure agreements with technology vendors in which the government promises not to be transparent to its community about the nature of the technology it’s buying. Among other things, such agreements interfere with independent expert study of the technology. Individuals accused of a crime should also be guaranteed access to any available information about their tests and how they were conducted.

Vera Eidelman, Staff Attorney, ACLU Speech, Privacy, and Technology Project
& Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project