About a month ago, the Supreme Court of the United States heard arguments on three cases which could have far-reaching effects for LGBTQ+ people. Two of these cases deal with whether Title VII of the Civil Rights Act of 1964 offers protection to LGB people against employment discrimination. The third deals with whether Title VII offers protection to transgender people against employment discrimination. In this third case, a transgender woman was fired for transitioning to live as a woman.
Before I dig deeper, I need to say this: I am tired. I am tired of hearing story after story of people taking actions which will cause harm to transgender people, solely because those people are transgender. I am tired of the endless arguments about the nature of being transgender – is it real, is it valid, or are transgender people delusional or mentally ill? And I am especially tired of my humanity and dignity being debated.
Just one year ago (almost to the day!), citizens of Massachusetts voted on the Massachusetts Gender Identity Anti-Discrimination Initiative, which was a referendum on whether to uphold an existing Massachusetts law which granted protections in public accommodations for people on the basis of their gender identity. In other words, the people of Massachusetts were voting on whether to strike down existing law which protected transgender people in their right to use restrooms and other gender-segregated spaces in alignment with their experienced gender. The referendum passed and the law was upheld.
This is a win, right?
I didn’t feel any sense of joy upon learning of the result. I spent the entire day disappointed. How dare other people get a say in whether I get to go to the bathroom safely?! My bodily functions are not a political issue. I am a human. I have kidneys and a digestive system. I pee. And I poop. Just like you. Just like everyone else. If we are going to segregate where people pee and poop based upon gender, why is my gender somehow suspect and subject to debate when everyone else’s is not? Why do other people get to decide whether I have to use a bathroom with men, even when I’m not one? Why do other people get to put me into harm’s way just for needing to do something that every human has to do? Why is my humanity being debated?
When I shop for clothes, I’m shopping in the women’s section. I try on dresses, blouses, and skirts. I have breasts. I wear a bra and panties. The only difference between me and other women is that I had different genital anatomy, and that anatomy had been used to incorrectly classify me into the wrong gender for most of my life; but I was a woman all that time – a lonely, ashamed, hurt, miserable woman. When I go to a fitting room, why is which room I get to use part of any discussion? Nobody else has to endure those kinds of discussions. Why do others get to tell me that I’m not allowed to use the fitting room located in the very department that I selected the clothes I need to try on? Why do others have the ability to make me trudge across the store to a men’s fitting room, or worse, in a store which only sells women’s clothing, block me from trying clothes on altogether? Why is my dignity being debated?
So when I say I’m tired, please hear me: I. Am. Tired! I am tired of my humanity and my dignity being something that someone else gets to grant or remove from me, depending on how they feel.
Returning to the SCOTUS, we have a similar set of circumstances – a group of nine justices making decisions about how other people can or cannot legally discriminate against me. How did it go? Well, let me set the stage…
Aimee Stephens worked as a Funeral Director for Harris Funeral Homes for 6 years, and was an excellent employee. In 2013, she notified her supervisor that she would be transitioning – that she was taking a vacation, and upon her return, she would be presenting as a woman and abiding the dress code as specified for women. Within 2 weeks, the funeral home fired her. The owner of the funeral home claimed that it would go against his religious belief that a person’s sex is immutable and it is wrong for someone to deny the “God-given gift” of their sex, and that he should not be forced to allow Aimee to present as female – to wear women’s clothes (even when those clothes comply with the company dress code).
Aimee filed a complaint with the Equal Employment Opportunity Commission (EEOC), who reviewed and agreed with her position that she had been terminated in violation of the law, specifically Title VII of the Civil Rights Act of 1964, which provides protections against discrimination on the basis of sex. The EEOC sued the funeral home (Harris Funeral Homes v EEOC), lost the initial decision, but appealed to the 6th Circuit court and won a reversal. In the decision to reverse the original ruling, the 6th Circuit clarified that “discrimination by sex” includes transgender people, and relied on a 1989 SCOTUS decision in Price Waterhouse v Hopkins which established that gender stereotyping violates Title VII’s provisions against “discrimination by sex”. Harris v EEOC was then accepted by SCOTUS for hearing in October 2019.
So the basic question to be decided is “does the protection against ‘discrimination by sex’ in Title VII of the Civil Rights Act of 1964 include gender identity?” Similarly, the other two cases also heard in the same session ask the same question, except about sexual orientation.
Harris v EEOC was heard after the two other cases, so there was some reference back to arguments made in those cases, but to me, the most telling part of the hearing were what the Justices asked and said. (Quotes all pulled from official transcript)
Justice Gorsuch: … a reasonable person in the transgender plaintiff’s position would be harmed if he or she were fired for failing to follow the — the bathroom rules or some sort of dress code that’s not otherwise objectionable,
Justice Sotomayor: … let’s not avoid the difficult issue, okay? You have a transgender person who rightly is identifying as a woman and wants to use the women’s bedroom, rightly, wrongly, not a moral choice, but this is what they identify with. Their need is genuine. I’m accepting all of that — and they want to use the women’s bathroom.
But there are other women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathroom. That’s why we have different bathrooms.
So the hard question is how do we deal with that?
Justice Alito: I understood you — I understood you to say — maybe I didn’t understand you correctly — that if your client had been fired for using the woman’s bathroom, that would be a violation of Title VII.
Chief Justice Roberts: Well, but the difference is that part of the argument, at least, is that the term “sex” includes sexual orientation.
And — and if that is the case, if we analyze the bathroom case purely on the basis of biological sex, maybe you have one answer. But if you analyze it in terms of transgender status, you have a different answer, because men and women who identify with their biological sex aren’t disadvantaged whether they are using the men’s room, you know, they each can use their own restroom.
But the issue seems — is quite different if you are dealing with a transgender individual who wants to use the restroom of their gender identity, contrary to their biological sex.
Do you see the theme here?
Bathrooms. The Justices are stuck on bathrooms! And that isn’t even the question before them. As the attorney arguing before the court states (emphasis mine):
Mr. Cole: Well, that is — that is — that is a question, Justice Sotomayor. It is not the question in this case.
Mr. Cole: But, Justice Sotomayor, the reason deciding this case will not decide that case is because — It won’t decide — but even if you rule against us, that case can arise, because it is a sex-specific rule, and anyone who is affected by a sex-specific rule can argue that it discriminates against them because a reasonable person in their shoes would experience a significant harm.
In other words, whether transgender people are allowed to use bathrooms in alignment with their experienced gender is a completely different issue!
The discussion then moved to transgender athletes – whether they should be allowed to compete with others of their gender, or with others of their “biological sex”.
Justice Alito: Let me move beyond the bathroom to another example. And it is not before us, but it will be coming. So a transgender woman is not permitted to compete on a woman’s college sports team. Is that discrimination on the basis of sex in violation of Title IX?
Mr. Cole: So Title IX is a different statute with regulations that explicitly permit sex-segregated teams when competitive skill or — or contact sports are involved. So, again —
Justice Ginsburg: But this is not — this is a question of someone who has transitioned from male to female — and wants to play on the female team. She is not questioning separate female/male teams.
But she was born a man. She has transitioned. She wants to play on the female team.
Does it violate Title IX which prohibits gender-based discrimination?
So we went from arguing about Title VII to Title IX — which isn’t even part of this case! Mr. Cole does a good job reminding the court of this, and points out that Title IX deals with differences in competitive skill in contact sports, and under that lens, perhaps it is permissible (and perhaps it is not permissible) to treat transgender people differently in sports – but that isn’t the question before them.
Mr. Cole: But this — this case just asks, when you fire somebody because you say she — he was going to represent himself as a man, because she was using the name Aimee and that’s not permissible because he’s a man, is that sex discrimination? Yes, that is sex discrimination.
The arguments then shift to judicial interpretation – should the courts interpret new meanings for laws as written, or try to follow the intent of those who wrote the laws. Justice Gorsuch expressed concern that changing the rules/laws for which bathrooms and what dress codes transgender people must use is a massive social upheaval and is more appropriate for the legislature to take up. Mr. Cole counters that in this case, there’s no ask to reinterpret the meaning of “sex” – that the strict meaning as it was understood in 1964 would suffice. Gorsuch concedes that point, and that even with the strict (1964) definition of sex, this case is really close (because there are expectations of how sex is to be performed – aka gender!), but the follow-on question is whether the courts should take into consideration the “massive social upheaval” that their decisions have. Mr. Cole responds by pointing out that the courts have recognized discrimination against transgender people as sex discrimination for 20 years. And he points out that there are lawyers – transgender men – in that very courtroom, dressed according to the men’s dress code, using men’s restrooms, and there has been no disruption to the court whatsoever; and that extending outside of the courts, there have been no massive social upheavals experienced even though transgender people have been out and living as their experienced genders for a very long time. Justice Gorsuch’s response seems to show that he wasn’t satisfied with that answer, and Mr. Cole’s testimony concludes.
Can you see why I’m tired? Why I’m frustrated? Why I’m disgusted? The question before SCOTUS is whether under Title VII it is legal to discriminate against someone on the basis of their gender identity, and the sitting Justices are bickering about bathrooms — which aren’t even pertinent to this case! And then bickering about Title IX, which also isn’t pertinent, and then worrying about judicial interpretation of the laws outside of what was written – when there’s very little interpretation being asked of them. The highest court in the land gets to decide whether I can be fired just for being transgender, but are more concerned about which bathroom I use, and whether I might play on a women’s softball team! Seriously?!
I’m so tired of this!