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A Supreme Court ruling makes it illegal to discriminate against an employee based on sexual orientation or gender, but that barely begins to address the unique pressures and harassment faced by trans service workers
On June 15, in a historic case, the Supreme Court held that federal law forbids discriminating against an employee solely because of their sexual orientation or gender identity. Such an action would be considered discrimination under Title VII, as “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” writes Justice Neil Gorsuch. In other words, a workplace couldn’t legally fire a man for having a husband because it wouldn’t fire a woman for having a husband. If “the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth,” it’s discrimination “because of … sex.”
Much of the praise for the ruling comes from the fact that it’s been a long time coming. Until now, it’s been legal in more than half of U.S. states to fire someone for being gay, bisexual, or trans, even though it’s clearly a discriminatory practice. “The Supreme Court’s decision provides the nation with great news during a time when it is sorely needed. To hear the highest court in the land say LGBTQ people are, and should be, protected from discrimination under federal law is a historic moment,” said Mara Keisling, executive director of the National Center for Transgender Equality, in a statement. However, she notes, “we still have more work to do to ensure that transgender people can fully live their lives without fear of discrimination for being who they are.”
The food service industry has often been a place for society’s “outcasts,” including LGBTQ people, to find acceptance and community. But while this ruling is a win for LGBTQ rights in general, trans and nonbinary people in the food service industry are questioning how much of an effect it’ll have on everyday life — and imagining what could be done to effect tangible change.
Niko Prytula, a nonbinary person who lives in Virginia, only recently stopped working in food service after eight years, most recently at a fine dining establishment with extremely formal practices. At most of their jobs, they were never open about their gender identity. “I was always out as queer, and there were not that many places where I was the only queer person on staff,” they say, “but when I was working fine dining, that was the first time where it felt like it would be a genuine obstacle to be out.”
Most of that was not because of the risk of discrimination from management, but rather from customers. Prytula recalls the extraordinarily gendered style of service, which required serving the oldest woman at the table first, referring to coworkers and patrons as “Mister” or “Miss,” and serving mostly older, white customers. “I do think [coming out] would have just made things very complicated,” they say. “I feel like it would have required me to create almost like a flowchart for my coworkers of like, ‘Okay, so I want you guys to use the correct pronouns for me, but you can let the tables misgender me all they want, because I don’t want to get in an argument with some elderly person when it’s literally a matter of my income.’”
Lucky Michaels, a trans rights activist and bartender at Storico at the New York Historical Society, says “as a trans person, job security is huge.” Michaels, a nonbinary trans woman, has been working in hospitality since the late ’90s, and says that because of the need for job security, “most of the trans people that I find [in the industry] are absolutely in the closet, stealth because it’s a really toxic work environment for people in general.” It’s not just discrimination from customers; it’s also the hypermasculine kitchen culture that persists in restaurants to this day.
Having a job is a high bar to clear for many trans people, says Michaels. “If you don’t have a house to go home to, or a place to change your clothes and shower or eat, how are you going to be able to get or sustain a job in the first place?” While the risk of losing a job is worrisome for everyone, unemployment, homelessness, and food insecurity are things that affect trans people more across the board. According to an April 2020 report from the Williams Institute looking at pre-pandemic numbers, “78.1 percent of trans adults are in the workforce, 12.8 percent of whom are unemployed, translating to an estimated 139,700 trans people unemployed (and looking for work) nationwide. In comparison, between 3.9 percent and 4.9 percent of U.S. adults in the labor force are unemployed.”
However, the COVID-19 pandemic has exacerbated those numbers. The Bureau of Labor Statistics put the unemployment rate at 13.3 percent for May. And according to the Human Rights Campaign, trans people have been more likely to have lost their jobs during the pandemic and economic crisis: “19 percent of transgender people and 26 percent of transgender people of color have become unemployed due to COVID-19, compared to 17 percent of LGBTQ people and 12 percent of the general population.” The numbers are particularly bad for the food industry. The BLS reports that an additional 1.2 million jobs in the leisure and hospitality sector were lost in May, on top of the 7.4 million lost in April. And HRC reports that LGBTQ people are more likely to work in industries affected by COVID-19, including 2 million (15 percent) who work in restaurants and food services.
The SCOTUS decision sets a precedent, both legal and social, and signals to employers that there are bigger consequences for discrimination, but bigoted employers will always find other ways to alienate and push out trans employees. (The ruling does not apply to contractors, like most delivery drivers or Instacart shoppers.) Both Prytula and Michaels note how rare it would be to have “evidence” of a boss firing someone because they are trans. “I can’t tell you the number of times that people have tried to get rid of me because I’m trans without saying, ‘This is because you’re trans,’” says Michaels. “I’ve had managers and chefs try to get me to quit or leave, that have thrown around really horrible language. They’ll be using ‘faggot,’ I’ll be barred from the restroom of my gender identity, they give you inappropriate schedules, they give you inappropriate uniforms.”
The nature of the ruling also just doesn’t apply when much of working in the food service industry involves interacting with customers, who are essentially your bosses for 90 minutes at a time and are under no legal requirement to treat you fairly. “If you’re no longer allowed to be fired for being queer, but your income depends on whether or not guests find you palatable, or performing the right way, or, god help you, attractive, it doesn’t really help that much,” says Prytula.
Then there’s the issue of at-will employment. If you work without a union that has argued for just-cause termination, in most states, your boss can fire you without reason anyway. “Often the unique circumstances and additional burdens queer, and especially trans folks live with can make them more susceptible to ‘fireable offenses,’” says V Spehar, a nonbinary person who has worked in the hospitality industry for years, and who most recently was the Director of Impact at the James Beard Foundation, focusing on Women’s Leadership & LGBTQ programs. “Being late, having to grin and bear rude customers’ comments, lack of emotional or mental support, lack of secure housing or familial support” are all reasons that an employee could be seen as “not the right fit.”
On an encouraging note, there are other legislative pushes that, while helping all workers, could protect trans people specifically. Prytula says doing away with tipped minimum wage would mean trans food service workers would be more likely to earn a living wage without monitoring their appearance for the sake of transphobic customers. Doing away with at-will employment could do a lot too, as Sarah Jones writes for New York Magazine, as trying to sue your former employers for trans discrimination “can burden workers who don’t have the independent means to hold their former employers accountable.”
Spehar also says more change needs to come from within the industry, and not only from outside legislation. “Without creating a culture of understanding for the out-of-work burdens that disproportionately affect the LGBTQ community, we are all still held to the same ‘professional’ standards and expectations created by cis white culture,” they say. That means restaurant owners and nonprofits prioritizing anti-bias training, putting resources toward helping queer and trans people open their own businesses, and centering the fact that the food industry “is built foundationally on black, queer, women’s, and immigrant’s labor.” And making sure these issues take priority outside of Pride month, when many businesses use the LGBTQ community for marketing gimmicks.
Michaels still sees the food service industry as a place where trans people can thrive. She notes that James Beard was an out gay man at a time when that wasn’t widely accepted, and how restaurants and bars, especially Black- and women-owned restaurants and organizations, are committing themselves to diversity, equity, and inclusion work. But she also notes there’s a bigger picture outside the rights of those who find employment. “I don’t know that it is in legislation,” says Michaels. The SCOTUS ruling is an important piece in the massive, and mostly incomplete, puzzle of legislation and activism that’s needed to truly secure equitable treatment for trans people. “Legislation, as we’ve seen, can be fickle, and driven by administration, politicized,” says Spehar, “and in the end will never do what humanity and compassion from the industry can do.”
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