I’m a Trans Lawyer Who Fought for Trans Rights—and Lives—at the Supreme Court Last Week
When I walked into the Supreme Court last week to defend the rights—and lives—of transgender people, I felt the power of the many people who have fought before us and the magnitude of the day became clear. It had been a long week, a long six months, a long 10 years, culminating in what could go down in history as a watershed moment for lesbian, gay, bisexual, transgender, and queer (LGBTQ) civil rights.
For me, as a transgender lawyer fighting for my own dignity and for critical protections of my community, it was both a defining moment in my life and a humbling reminder of how much work lies ahead.
On October 8, the Supreme Court heard arguments in three cases that addressed whether firing a worker for being LGBTQ is sex discrimination, which is prohibited under the Title VII of the Civil Rights Act of 1964. I am one of the lawyers representing Aimee Stephens, the plaintiff in one of the three cases the Court heard this week. Aimee was fired from her job in 2013 after telling her employer that she is transgender and would come to work as her true self—a woman. The two other cases that were argued that day involved men who were fired when their employers found out they were gay. Though the cases directly involved transgender and gay plaintiffs, the questions before the Court implicated the entire LGBTQ community and beyond.
I have spent the past six months immersed in the cases, living and breathing the legal issues, the personal impact, and the historical significance. Even though we largely understand these cases as LGBTQ cases, the Court’s ultimate decision will implicate everyone regardless of sexual orientation, transgender status, or gender identity. Why? Because, as James Esseks, the director of the ACLU LGBT & HIV Project explains, without protections from sex discrimination, we could “return to a world where employers can fire anyone—straight or [not], transgender or not—for not being the ‘right kind’ of woman or man.”
The central legal question presented in the cases is quite simple: When an employee is discriminated against because they’re LGBTQ, is it “because of sex” that they faced discrimination? Lower courts have largely held that it is—in other words, discrimination against LGBTQ people is considered a form of a sex discrimination. After all, you cannot even define sexual orientation or transgender status without referencing sex (however sex is defined). As a result, the courts have recognized this common sense proposition—that if someone is fired because they are a different sex than the one assigned to them at birth or because they are attracted to people of the same sex, the discrimination is, at its core, undeniably “because of” the person’s sex.
For this reason, trans people have enjoyed federal legal protections from sex discrimination for nearly 20 years. But while the legal question was a simple one, the political and social dynamics surrounding the cases were anything but simple, and the outcome is decidedly uncertain. Why are things so uncertain in this particular moment? In part because the Trump administration has been invested in transforming the federal judiciary—he’s appointed dozens of conservative justices including two who sit on the Supreme Court. What’s more is that once any case gets to the Supreme Court, the outcome is uncertain because the justices there are not bound in any way by lower court precedent. And the risk is always that all your protections get taken away.
Entering the courtroom on Tuesday, I was filled with a combination of dread, gratitude, determination, and sadness. On the one hand, it was such an honor to be a part of the team that would defend our client and name the injustice that she faced before the highest court. My colleagues at the ACLU and I had debated and workshopped thousands of permutations of questions and answers over weeks and months, and now we had a chance to show how fiercely we were prepared to fight for trans lives.
At the same time, as a transgender person, the idea of debating my basic humanity in the theater of the courtroom before powerful decision makers was deeply unsettling. I braced myself for the familiar barrage of confusion, repulsion, dehumanization, and mockery that often come from the powerful when speaking on trans existence.
As expected, even though the Court was tasked with answering only the threshold question of whether it is discrimination “because of sex” to fire someone just because they are LGBTQ, much of the argument focused on the existence of sex-specific spaces and rules like restrooms, dress codes, and sports—none of which were directly implicated in the cases. But for those of us familiar with litigating trans cases—or living trans lives—this was not surprising. One minute we are saying, “You can’t fire us because of who we are,” and the next we’re contending with the suggestion that our bodies will somehow lead to the collapse of the safety of the most sacred of all places: the public restroom. And in the process our bodies are positioned as inherent threats to others.
Within minutes of my colleague’s argument explaining why firing Aimee Stephens because she is transgender is impermissible discrimination because of sex under Title VII, Justice Sotomayor seemed to question whether trans people infringe upon the rights of others by just existing:
“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 bathroom, 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 Sotomayor, perhaps just laying out what she believed to be the “elephant in the room” or perhaps expressing her own concerns, tapped into the deep fear of trans existence that permeates all of our work and haunts our lives. Though her question assumes both that people are uncomfortable in the presence of transgender people and that the law might accommodate such discomfort through the discriminatory exclusion of some (trans) women from public spaces, neither assumption is correct.
The reality is that trans women, existing in proximity to nontransgender women, cause no harm and pose no threat. It is not an invasion of privacy to be near those who are different from ourselves, and in fact it is the very function of nondiscrimination law to ensure that such fear of difference is not used to systematically exclude groups of people from public life. The specter of social upheaval and customer disgust if transgender people continued to be allowed in the workplace and the public sphere reemerged throughout the argument.
One of the goals of the Trump administration (which argued on the side of the employers in defense of excluding LGBTQ people from the protection of the law) and the employers in the three cases appeared to be driving a wedge between transgender people and nontransgender women in the hopes that the larger community of cis women and non-LGBTQ workers might miss the extent to which the administration’s position would undermine their rights too.
Indeed, to roll back protections for LGBTQ people under law necessitates the narrowing of sex discrimination law altogether. And if the employers and the Trump administration win the day, it won’t just be trans people who find ourselves outside the law.
Ceding to the administration or the employers to define the contours of permissible roles and expressions for men and women in the workplace will lead to disastrous results for all of us. After all, without protection from discrimination on the basis of sex, all people, regardless of gender identity or sexual orientation—so, including cis and straight people—can be lawfully fired (or not hired or denied promotions) for failing to dress or behave in a way that their employer deems “feminine” or “masculine” enough. This would make it lawful to deny a woman a promotion because she doesn’t wear feminine clothing or fire her for behaving too aggressively.
It will be months before we get a decision, but the work doesn’t stop now; and no matter the outcome, this is all just a part of the long fight for justice. Win or lose we will keep fighting to ensure that no person faces discrimination or violence because of who they are.
Chase Strangio is Deputy Director for Transgender Justice with the ACLU’s LGBT & HIV Project and a nationally recognized expert on transgender rights. Chase’s work includes impact litigation, as well as legislative and administrative advocacy, on behalf of LGBTQ people and people living with HIV across the United States. Follow Chase on Twitter here.
Related:
Originally Appeared on Self
