The Historic Trans Rights Case Before the Supreme Court (ep. 67)

October 3, 2019
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On October 8, the Supreme Court will hear a set of cases deciding whether LGBTQ employees are protected under federal sex discrimination laws. In one of those cases, the ACLU is representing Aimee Stephens, a trans woman who was fired after she came out to her employer. Chase Strangio, one of Aimee's lawyers and deputy director of the ACLU's LGBT and HIV Project, discusses the stakes of the case.

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[00:00:04] From the ACLU, this is At Liberty. I'm Emerson Sykes, a staff attorney here at the ACLU and your host.

[00:00:18] On October 8, the Supreme Court will hear an extremely important set of cases deciding whether LGBTQ employees are protected under federal sex discrimination laws. In one case before the court, the ACLU is representing Aimee Stephens, a transwoman who was fired after she came out to her employer.

With us today to take a deep dive into the Stephens case and the broader fight for trans rights is one of Aimee's lawyers, my formidable colleague Chase Strangio, deputy director of the ACLU LGBT and HIV project and, as of last week, an Emmy Award winner. Chase, thanks very much for joining us today. Welcome back to the podcast.

[00:00:54] Thanks for having me.

So I can't start anywhere except the Emmy red carpet. What on earth were you doing at the Emmys?

Well, this was a surprising turn of events in my life. When I when I went to law school, I didn't think, “You know what, I'm going to make it to the primetime Emmy red carpet.”

But last week I went with Laverne Cox to the Emmys. Our goal was really to raise awareness about the cases before the Supreme Court that are answering the question of, Are LGBTQ people covered under federal law? And it felt like no one was talking about it. And what better context in the United States than a big pop culture celebrity event to try to raise awareness? So we went.

Well it's great. And you looked great and the pictures were great. And you were there to raise awareness. Laverne had an amazing hand clutch that October 8th on it and a rainbow flag. It was really cool.

But you weren't only a guest at the Emmys. You and our colleague Molly Kaplan also won an Emmy. Can you tell us about that project?

[00:01:52] Yeah. So two days later at the news and documentary Emmys, the ACLU was nominated for a film about Kai Shapley, who's young trans girl in Texas, and the film just sort of follows her journey with her mom and her family, coming out as trans and them coming to terms with her transness. And it's a beautiful film and it got nominated and we were like, Oh that's great.

This is a really important story and I think it really resonates for people, especially for people who are parents or for anyone who's sort of struggled with any aspect of sort of coming to terms with who they are. There's something really resonant and personal about it and then it won an Emmy at the news and documentary Emmys and that's also pretty exciting.

Well was a well-deserved award and it's a really powerful short that people should definitely check out. It's not every case that lands someone at the Emmys or even you know produces a short documentary. But it does seem to be something particular about the fight for trans rights where we know that the courts aren't going to be enough and there is this big piece of sort of changing the national narrative changing cultural norms. Where how does those two parts of your job fit together.

Yeah I mean I sort of think this should always be a part of legal work. I mean the reality is is that we can push narratives in the courtroom. We can change formalistic laws, but ultimately we know that the real fights are happening in people's lives on the ground and and particularly when it comes to the fight for trans justice, where the community is so misunderstood and there's so much false rhetoric out there.

So much of the work is pushing forward in the courts, pushing forward in the legislatures, but also and critically important, is making sure that trans people are speaking our own stories and that the country is aware of what it means to be trans. And so we can't win that fight if we're just fighting in the courts, and so so much of the work is cultural production work too.

[00:03:41] I want to come back to some of the stuff that you've been doing outside of the courtroom, but let's let's zero in a bit on the case that's before the Supreme Court next week. Aimee Stephens, a trans woman, was fired soon after coming out. Can you tell us, What is the question before the court and what really is at stake?

[00:03:59] Yeah. So Aimee’s story is really it's so simple.

She was an employee at a funeral home outside of Detroit for six years. At the time, she was understood to be a man. She was assigned male at birth and she was a valued employee. During that time, she was struggling with the fact that she knew inside, as she had from a young age, that she is a woman and she started to seek counseling and with the support of her wife decided that she could no longer live this lie. And so she informed her employer. She wrote this beautiful letter coming out, saying I am Aimee Stephens, I am a woman and I'm going to come to work as my authentic self.

And then he just fired her. And she at the time, this was in 2013, filed a complaint with the Equal Employment Opportunity Commission and so the case has been making its way through the courts for the last six years and the central question is, Does Title VII of the Civil Rights Act, which prohibits discrimination because of sex under federal law include discrimination against someone because that person is trans? And that's the question.

And it's actually a question that the lower courts have almost unanimously ruled in favor of trans employees. And if you think about it it makes sense. If you're firing someone because you thought they were one sex and they are actually another sex, it is quite intuitively because of sex.

[00:05:21] And lower courts have really come around to to holding that in a variety of contexts over the past two decades. And there have grappled with it both that sort of changing sex is because of sex. And also I think something else that's intuitive is that federal law that prohibits discrimination because of sex also prohibits discrimination because of sex stereotypes. And disagreeing with the notion of a trans person is fundamentally just rejecting the idea that they don't meet your expectation of what a man is or what a woman is. And so that's another way that the courts have ruled in favor of trans employees and in comparable contexts. And also the way the lower court ruled in favor of Aimee.

[00:05:55] And in addition to the Aimee Stephens case there's also a case addressing sexual orientation and whether that is protected by sex discrimination laws as well.

Yeah. So there's two cases that deal directly with the question of whether discrimination because of sex encompasses discrimination because of sexual orientation. And in both those cases the facts, like the facts and Aimee Stephens’ case, are an employer fires an employee once the employer either learns of or has other reason to discriminate because the individual is gay. And those cases are now also before the court in a comparable question of whether Title VII prohibits those firings.

Well, the way you present the case and the reading that I've done about it, you are right. It does sound intuitive to me. How can discrimination based on transness not be discrimination based on sex?

But this is not going to be the easiest argument, right? So what is what is the biggest challenge to this win that seems like a no brainer to you and me.

[00:06:52] I think the two main arguments that our opponents are advancing are, one is grounded in sort of what Title VII is about. So the other side is saying, Well in 1964, there is no way that Congress intended Title VII to apply to LGBTQ people. So that's one of their arguments. And our response to that is that may very well be true but that's just simply not how the law works. It's -- the court's job is not to discern what Congress may or may not have wanted in 1964. It's to apply the language of the statute and Justice Scalia, who is not known as a progressive jurist in any way...

To say the least to say the least.

To say the least. Was someone who in a different Title VII case involving same sex sexual harassment said well it may be true that Congress didn't anticipate Title VII covering sexual harassment between two men, but they wrote a broad statute and our job is to apply it and that's all we're gonna do. And in a 9-0 opinion essentially said Title VII encompasses discrimination and encompasses harassment between employees of the same sex - end of story. And so that's sort of the response too. While Congress couldn't have wanted this because that's not the test.

[00:07:57] And then the other argument that the other side is making is really one that's playing on fears of transness and also commitment to enforcing gender norms. And that argument is if we allow trans people to be covered under Title VII, then we're going to abolish sex separation altogether. And this is a total red herring for it for two reasons.

The first is that you know when a trans person enters a sex segregated space consistent with who they are, the space remains sex segregated. So for me, if I go to the men's bathroom it is still a men's bathroom. And so one of the things that they're doing with this argument is sort of enforcing the idea that trans people aren't really who we know we are and sort of saying our existence collapses sex segregation and that's just a specious anti-trans argument altogether.

The other argument that they're making here is really one that sort of betrays their commitment to really traditional gender norms. But what they want is a world where workplaces can see men and women as fundamentally different and treat them differently -- which is really counter to Title VII altogether. And so they're saying well Title VII was never intended to get at discrimination unless it disfavored one sex over the other. And they want to enforce workplace norms where employers could fire a man for being insufficiently masculine as long as they fired a woman for being insufficiently feminine, which is hopefully something we do not want as a general matter, because it would roll back the entire paradigm of sex discrimination law about 30 years. But they are raising that argument.

[00:09:30] Well that last point the last one that you made about how this really applies to anybody who in any way doesn't conform to some traditional notion that is defined by who whomever of what gender norms or sex should be, this really implicates anybody who wants to break in any way from that traditional framework.

Yeah. And I think the scariest thing is that the employer would get to decide who does.
So you could come in and and you know be a heterosexual sort of traditionally masculine man and say that I have leave at 4 p.m. today to pick up my kid and...

-- Which I had several times last week.

CHASE: Yeah exactly. The employer could say, Whoa whoa whoa, men are the primary breadwinners, you can't be responsible for you know child rearing in this way, and so I'm going to fire you. And obviously that's an extreme example but that is the type of gender role stereotyping that they are seeking to enforce with many of the arguments they're advancing in this case.

Well the other side has submitted a whole slew of amicus briefs and some of them are the usual suspects. Some of the people who are trying to enforce quote unquote traditional gender norms are who you would think: sort of the religious right, social conservatives of various stripes. But there's also maybe the most troubling or most difficult set of opponents are folks who are doing it in the name of what they consider feminism. Can you talk about that sort of strain of of of attack on these trans rights?

[00:10:58] Yeah.There there are groups that are committed to that sort of strain of anti-trans rhetoric under the guise of feminism. And their argument is that if we protect trans people in the workplace it will somehow harm non-trans women.

And we see this argument in a variety of contexts. It's a place where you have people who are purporting to advocate for women's rights aligning themselves with the far right groups to say, "Trans people are fundamentally at odds with women's rights.

I do want to point out first and foremost that this is a very fringe sort of small subset of people who do this in the name of feminism. The major women's rights groups are wholly on the side of the trans employees and this in this set of cases, including, you know, the National Women's Law Center what was formerly Know Your IX. All of the groups that we see leading the fight for gender justice at this time are are sort of arguing that, “Our liberation is tied up with yours and if the court rolls back sex discrimination protections what we know to be true is that cis women, non-trans women, will be hurt by that.”

I think that the group of people who are claiming that trans women are men and that transness is a threat to womanhood somehow are a group of people that have so tied up their own identity in it in relation to the exclusion of others that it's really hard for me to take it seriously. It's not like a zero sum game. There's not only so much womanhood to go around. Like, my gender doesn't take away from another person's gender.

[00:12:31] I think in the context of marriage equality we would see a version of this argument where people would claim somehow that if same sex couples could get married it would undermine the marriages of different sex couples, as if like one person's marriage is in any way defined by a wholly unrelated set of people who are just living their lives.

And I think we should think of this as as absurd, because one person's womanhood does not take away from another. And I will say that is largely being led by white women because I think that there is the history of feminism that is exclusionary is one that we can trace through time and unfortunately many strands of feminism have excluded people, whether it's you know black women, immigrant women, disabled women, queer women, and now trans women. This is part of the legacy of a subset of feminism and I think we have to call it out as such. But you know we can't define any group for liberation in relation to excluding others, and I would say that is exactly what they're doing.

Well it's important to highlight that this is a fringe element -- it's a vocal fringe -- but it's a fringe element. And it seems like you know there are folks who are quite set in whatever their ways are or their views are on gender because of their deeply held religious beliefs or or other sort of deep ideological commitments.

But who's in play here? Whose minds do you think we can change? I mean you've talked a lot about your family - how our dad is a big Trump supporter. I don't know if he's rooted in religion in his beliefs, but there are these folks who aren't necessarily religious ideologues, but they might be in play. These are people who you can possibly convince. Who do you think you're trying to - who's not there yet that you think you convince?

[00:14:07] I mean I think there's two ways of thinking about what what types of convincing need to happen.

There's the sort of legal convincing and I really do think that the argument we're putting forth is a very straightforward textual argument and that we should be able to convince textualists within the legal world that you know the words “because of sex” apply broadly and that they include the discrimination that's at issue here. Because it really you can't even explain why you don't like trans people without using the word “sex” at some point. And so I think that is is sort of a conservative argument that should and I hope will win in the courts, particularly in the Supreme Court where we actually only have to convince one or two people.

But that isn't going to win the day for trans people. That isn't going to save trans lives as fundamentally as sort of culture change work and power and base building work will. And I think there, we just have to we have to do two things.

One is we have to continue to center trans people so that people see us for who we are. In people's minds, we may threaten everything they believe to be true, but the more that you just engage the person it starts to break down that assumption, so that you know if we if we just shove people to the corner and don't let them speak for themselves that we won't be able to do that work.

And then I think the other thing that we just have to fundamentally do as part of the project of sort of gender liberation in the United States is really challenge the idea of sort of the gender binary and what it means to have a gender. I think we're really fixated on gender norms and sort of sort of biological notions of gender that we're actually moving backwards and in some ways.

[00:15:40] And whether it's sort of a response to you know anxiety, whether it's response to progress, I think that we actually need to sort of really sit down and ask ourselves why is it that we can't conceptualize a human being without putting them in a box of male or female and why is it that we believe that sort of our sex characteristics are so neatly broken down in a binary when it's just not true, both of people who have intersex traits and for people who are trans and for many other people whose you know characteristics exist on a spectrum whether it's related to hormones or genitals or chromosomes, which by the way many people don't know about themselves and so I think we have a lot of work in sort of challenging the assumptions that we make about gender and our bodies and our behaviors.

In terms of the court, I know you know gaming out who's gonna vote which way is not the best use of time. But if you had to look forward to when this decision comes out, what do you predict? What do you think's gonna happen?

Well obviously we're gonna win 9-0. So well so Scalia did write a 9-0 opinion in Oncale, as I mentioned and I think that it is unlikely. You know, unanimous decisions are not you know the norm these days. And I think it would be very shocking if we saw one here. [00:18:09] But I do still think that's how it should come out.

I think that you know we have obviously the the four liberals and you know we assume firmly in our camp and I think that we will likely be able to turn between one and three of the others.
That's at least the optimism that I'm putting out into the universe.

[00:17:10] That is, the legal arguments I think speak for themselves. These are straightforward cases where individuals were fired only because of their sexual orientation or trans status. The straightforward questions in the case to me are easily answered because, if you fire someone because of their attraction to someone of the same sex, that is because of sex. If you fire someone because in your mind they changed sex, that is because of sex. This is not a case to ask the court to define what sex is, it is a case to it is a case to ask the court to identify the scope of discrimination because of sex. And that is a wholly different project and one that should be easily resolved.

Right and you're not even asking them to whatever it means to endorse a certain lifestyle or anything like that. They really just have to say is this sex discrimination?

Exactly. They have to say, Is this sex discrimination? And the other side is always saying, “Well you should go to Congress and get your your groups added to the statute,” and to that I would say they should go to Congress. If they believe that the broad language of Title VII is operating in ways that they don't like then they certainly are free to go to Congress to ask Congress to write an exemption exactly how they wish it to be applied. But the reality is is that the plain language applies broadly here and I think that we should be able to get five.

I believe it too. I mean the arguments are extremely strong. The briefs are extremely well written. And we have our own David Cole arguing the case, so I think we're in good hands.
But turning back from the court to the social side of the trans rights movement.

[00:18:37] You talked about the importance of centering trans people telling their stories, having people understand that trans people are people -- as hard as it may be to think that that's something that you have to convince people. But you know you think about the LGBT movement and and just the exposure of people coming out as gay and how that changed so many people's minds, just to realize that their co-workers their friends their family members may have been gay or lesbian.

But I've also heard about the fact that visibility, especially with regard to trans folks, is a complicated thing and it can also lead to exposure and and some increased risk. Can you talk about this sort of balance between this need for increased visibility but also the need for privacy?

Yeah I mean I think there are two really important things we should be thinking about here with respect to that sort of visibility and representation.

As we saw in the context of marriage equality and the movement for LGB rights that obviously changing the public conversation had a huge impact on the policy and legal victories that we were able to see in what was considered a relatively short time period. Always true of civil rights movements. You sort of integrate into the sort of popular culture and public discourse and it does you know have an impact.

But I think as is always true and particularly true in the trans context is that it also creates a backlash. So you can't rely on visibility and representation on its own, because the reality is that the people who are experiencing the most violence are you know the black trans women are you know on the streets who are who are seen as visible as visibly trans in their everyday lives who are now being murdered at you know sort of epidemic proportions.

And so we can't say visibility will save us when we know that people are being murdered in the street. What we need to do is leverage visibility to actually create redistributive and meaningful changes on the ground that keep people safe safe from discrimination and also safe from violence.

[00:20:26] And the other thing I would say is that the more conversations that we have about transness and then the more people are looking for who is trans in their lives, obviously the more people become targets for individual campaigns of discrimination. And and sort of one thing I would point to is we represent to trans girls in Connecticut who are in high school and who happen to be successful track runners.

And in the midst of sort of the conversations about trans equality as we've seen sort of you know trans representation on TV rise, these two individuals are the subject of such unbelievable vitriol and so many campaigns against their very existence, that if we're only looking on Pose and Laverne Cox and the Emmys and thinking that we've solved it and not seeing what's happening to like individual black trans girls in Connecticut, for example, then we're not doing our work, because we're not having a holistic intervention in the types of discrimination and violence that our community is facing. So we have just a lot of work to do to make sure that people's lives are actually improving instead of looking like they're improving because of magazine covers.

[00:21:27] It's an important point and, as two of the bigger sports fans in the ACLU, I want to bring you back for a full conversation just on trans and sports.

I’m so ready.

I can’t wait.

But I do want to turn to a personal note, because you talked about visibility. And obviously you are among the most visible trans activists I think at the moment. And I know from my perspective as an African-American working on free speech and especially working on free speech and racial justice, the division between our our personhood and our work sometimes gets blurry. And there's a there's an old joke about like, “Are you a black professional or you're a professional black?” Meaning, Are you a black person who's a lawyer or you are is your job to be black?

And that's always I think a tough balance. You know like representation versus tokenism and all those sorts of conflicts that we go through on a daily basis, and I know from my own perspective it can be extremely challenging. It's rewarding, it's empowering, I feel like I'm doing something but it's also a huge challenge and it takes a toll.

And I know this is something that you've thought about a lot and talked about a lot as well. So I don't know if you if there's a analogous saying, Are you a trans professional or professional trans? But how do you sort of conceptualize those roles?

[00:22:41] Yeah, I mean I think this is a really important question for anyone who's sort of breaking into a world that is dominated by those who are different you know and sort of and almost been definitionally exclusive of your group of people. And when it comes to sort of big legal non-profits that are mostly cis, mostly white, mostly straight, I think there are a lot of questions what it means to be an outsider in that and what is our role.

And I think for me as sort of a white trans masculine lawyer, there's a lot of access that I have. So the access allowed me to break into the institution, to be present, to hold power in these spaces, and then it felt like my responsibility to sort of use that power to be, as you might say, “professionally trans,” because I just have felt that there are not you know as the first out trans lawyer at the ACLU that there are many things that people didn't know.

And so how with all of my access and privilege, if I didn’t the end sort of make my transness central to my work was I really doing the work of sort of opening the door for the next generation of people who could further disrupt the expectations of what it would mean to be a civil rights attorney? Like could you be you know trans, could you be a trans woman of color and not just be cast as a victim but seen as a leader?

[00:23:57] And our movement has been led by trans women of color and so I think the danger of sort of sort of making precious the role of the civil rights lawyer is that we end up sort of putting primacy on the voices of the white, formally educated individuals within the LGBTQ community instead of recognizing that the real work has always been done by those who have carried so many more burdens.

And so it has felt very much like my responsibility to use my transness as well as name my access in order to break down some of the assumptions about who can speak and when. Although I mean obviously like anyone you know putting out my own body and my own story as a teaching tool in and of itself comes with an incredible personal cost that I carry every day and I choose to carry continue to carry in the hopes that it will be of value and in the larger movement for trans liberation.

And a lot of our listeners are younger folks who are aspiring to be the next Chase Strangio in some way shape or form.

And it sounds like what you're saying is, “Be courageous, but also be humble.” Are there any other words of advice that you would share with folks who are looking to join the movement or are already in the movement but are an earlier stage of their careers? Any words of advice for what a young aspiring Chase?

[00:25:14] I mean I think from my perspective, anyone who wants to come into legal work I would say you know both: Yeah like definitely be courageous and be humble those those things need to go together.

And also that we all have a responsibility to do two things: One is to know that we're not right all the time and to name that. I think especially among lawyers there is an expectation of speaking as if our authority is always grounded in some correctness, which is usually not the case. And so sort of knowing that we are wrong and that we make mistakes and that the people around you who act like they don't are also wrong and making mistakes. And so and so knowing that.

And then also, and something that I say a lot, is sort of naming that there is no perfect intervention in a system that is predicated on violence in a system that was organized and founded on anti blackness and sort of maintaining chattel slavery. This is a system of violence that we are utilizing to the best of our ability for harm reductive purposes. But that does not mean that we will find the perfect intervention that leaves us free of blood on our hands. We will always cause harm in our work and that doesn't mean we do nothing. It means that we name it and identify the costs and benefits of the choices that we make and hold ourselves accountable and those that we're working with accountable.

And that means sort of being honest about the work that we're doing and saying yes like we are at the Supreme Court next week and that will have a huge impact on trans lives. It will not neither be the end of our movements nor the liberation of them, but it is a part of the work and we will honor all of the impacts of the decisions that we that we make. And so I think that to me is how we remain accountable and the work that we do.

[00:26:41] That's an extremely powerful message to young trans activists, but also to all of us. And what keeps you hopeful? If you’re hopeful -- it seems like you’re hopeful.

I I I have a lot of energy and I have a lot of energy in part because I get to do work that I both find incredibly intellectually stimulating -- that I get to work with people who inspire me every day and you know I think that is a gift that I am incredibly grateful for.

And I stay hopeful because I I know and have met and worked with you know the elders in our community who have fought so hard and survived so much. I have engaged with my clients and my colleagues who are in prison, who are locked away and maintain hope and resistance under incredibly violent circumstances, and so to me if the people who have come before me, if the people who we lock in cages, can keep fighting every day then certainly I can too.

Who are we to be hopeless?

CHASE: Yeah exactly.

Thanks very much Chase for all your amazing work on behalf of the ACLU, on behalf of trans rights, and knock them dead at the Supreme Court next week.

[00:27:44] Alright, thanks Emerson.

[00:27:49] Thanks very much for listening. If you enjoy At Liberty, you can help support the show and the rest of the ACLU’s important work by donating at We really appreciate it.

‘Till next week, peace.

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