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Anti-Trans Lawyers Were Grasping at Straws Before the Supreme Court

Even conservative justices seemed to see how convoluted and weak the case for workplace discrimination is.

Protesters rally in front of the U.S. Supreme Court as arguments are heard in a set of cases concerning the rights of transgender and LGBQ people in the workforce on October 8, 2019, in Washington, D.C.

Yesterday, the Supreme Court heard arguments on whether it is legal to fire people for being transgender or LGBQ. I’m on the team that represents Aimee Stephens, the woman fired from her job as a funeral director because she is trans — so I had a front seat.

The lawyer representing her employer opened his argument by saying it has to be legal to fire people for being trans, because, if not, trans women might be able to provide services to survivors of sexual and intimate partner violence, or seek those services when they have experienced sexual or intimate partner violence themselves.

That’s right. They argued that the prospect of cisgender and trans women survivors of gender-based violence sharing space is so terrible that all trans — in fact, even all LGBQ — people need to be expelled from the workplace just to make sure there is no chance it could happen. While they had made this argument in the brief, I didn’t expect them to lead with it at the oral argument stage — especially given how many anti-violence organizations sided with the TLGBQ employees in an amicus brief.

This is an issue that hits close to home for me. I, like many trans people, am a survivor of sexual and intimate partner violence. I have had no luck finding support. The closest I came was when a counselor told me I could join a male survivors’ support group, but only if I disclosed to no one that I was trans. Not only did it seem impossible to seek support in a setting where I couldn’t talk about how I was targeted as a trans person and a person perceived as female, but also the message was that I did not deserve safety around cis men unless I could and would hide that I was trans, and that I only deserved “support” if I kept my mouth shut.

I also used to work at the Sylvia Rivera Law Project. While there, several of my trans clients were trying to get away from violent partners. As trans people of color they faced multiple and overlapping forms of discrimination and oppression. They would get turned away from domestic violence shelters, end up homeless and sleep on the street, and often experience more gender-based violence. Most were trans women or femmes, but a few were trans men or genderqueer, and all were turned away. If you have an idea that only a certain type of person experiences domestic violence and deserves support, no trans person fits it. Many cis people don’t either. The anthology Queering Sexual Violence opens with a piece by River Willow Fagan, a genderqueer person who describes being turned away when calling a sexual assault hotline because the listener perceived their voice to be too deep.

That the other side wants to leave trans survivors stranded is hardly a surprise. But it surprises me just a little that they think the justices will see denying us services as so urgent that they should twist the law to force us out of the workplace.

The bright side is that if this argument seems a bit far afield from the actual issue at hand, even tinged with desperation, I think that came across to the Court as well. Other than anti-trans fear mongering, the other side only has a couple of arguments, none of them strong: 1) that men and women are different so it must be OK to treat them differently in the workplace, which justifies firing TLGBQ people; 2) that it doesn’t count as sex discrimination if you discriminate against men and women in roughly parallel ways; and 3) that Congress could not possibly have wanted to prohibit discrimination against TLGBQ people when it passed the statute in 1964, because there were so many laws against same-sex intimacy and cross-dressing back then.

While that last point may seem to have some surface appeal, it is actually very weak. First, it’s impossible to know what Congress was thinking at the time. Second, it would be strange if they didn’t think it would apply to TLGBQ people, since they wrote the statute to apply to everyone. Third, while there were many laws against same-sex intimacy and cross-dressing at the time, there were also many laws at the time barring women from holding certain types of jobs. And fourth, it doesn’t actually matter. The Supreme Court has repeatedly held that what matters is what Congress actually wrote, not what we imagine now that Congress was thinking about then. As Justice Ruth Bader Ginsburg pointed out yesterday, virtually no one thought Title VII prohibited sexual harassment at first either.

Of all the justices, though, it was Justice Elena Kagan who I thought came through most clearly for us. For example, she said:

It’s not a statute about, well, in the aggregate, does this act disadvantage men versus women or women versus men. It’s a statute that … says, is a particular person being treated differently because of her sex? And here, Ms. Stephens was being treated differently because of her sex.… If she had not been assigned the sex at birth that she was assigned at birth, she would have been treated differently.

The gender of everyone in the courtroom felt very much in play, in a way I expect was unusual. As I sat there, I took comfort from seeing women in the audience who have done incredible work for gender justice, like Ria Tabacco Mar, Carmelyn Malalis, Chinyere Ezie, Laverne Cox, Louise Melling, Gillian Thomas and Aimee Stephens herself. The women justices were most active in challenging the arguments of the employers and the Trump administration. Pam Karlan, who represented the employees fired for being gay, was the only woman at any counsel table (where the people arguing the case and a few other lead lawyers for the party sit).

Karlan got questions about whether sex-specific policies, like single-sex restrooms, are OK under the law. She pointed out that some differentiation in treatment based on sex is common and may cause no harm, like when Chief Justice John Roberts called her “Ms.” rather than “Mr.” When it was time for opposing counsel to speak, Roberts then pointedly avoided calling him “Mr.,” and opposing counsel placed special emphasis on calling Roberts “Mr. Chief Justice.” The audience laughed.

At one point, David Cole, who argued from our team for Stephens, pointed out that there were transgender men lawyers in the courtroom — meaning me and Chase Strangio — who were adhering to the dress code for men and who had used the men’s restroom, and yet the sky had not fallen.

Trans people were repeatedly misgendered, not only by counsel for the other side but also by the justices.

After all that, I was shaking with tension. It felt restorative to leave the courtroom with Aimee and hear supporters chanting: “We love you.”

While it is very difficult to predict, I am cautiously optimistic that we will win these cases. I’m more concerned about the next cases, where we will need to grapple more directly with the discomfort even some of the friendlier justices expressed about restrooms.

But the issue in these cases is just whether it is legal to fire people for being trans or LGBQ. Our arguments are simple and well-supported. The other side’s arguments are convoluted and unsupported. From the questions the more conservative justices were asking, I think even they may see that.

We won’t find out for sure for months (the decision will likely come out some time between January and June). But win or lose, we have a long way to go. I still recommend all the actions I recommended before the argument. I also recommend picking up a copy of Queering Sexual Violence and The Revolution Starts at Home, and making sure all survivors have the support we want and need.

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