A Landmark Supreme Court Decision Affirms LGBTQ Rights (ep. 104)

June 15, 2020
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It’s been over 50 years since Black and Brown trans women led the revolutionary Stonewall Riots, fighting back against police brutality and discrimination and launching a movement for equality. Today, we celebrate another incredible landmark in the fight for LGBTQ rights. In a 6 to 3 decision, the Supreme Court affirmed that it is illegal for employers to fire or otherwise discriminate against someone simply because they are LGBTQ. This will go a long way towards affirming legal protections in education, housing, credit, and health care — areas where too many LGBTQ people, particularly Black and Brown LGBTQ people, still face discrimination.

Chase Strangio, the Deputy Director for Trans Justice for the ACLU’s LBGT and HIV Project, joins the podcast to help breakdown this historic decision. 

If you want to donate to our continued fight for LGBTQ rights, please visit aclu.org/liberty!

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MOLLY KAPLAN
From the ACLU, this is At Liberty. I’m Molly Kaplan, your host for this episode.

It’s been over 50 years since Black and Brown trans women led the revolutionary Stonewall Riots, fighting back against police brutality and discrimination and launching a movement for equality. Today, we celebrate another incredible landmark in the fight for LGBTQ rights. In a 6-3 decision, the Supreme Court just affirmed that it is illegal for employers to fire or otherwise discriminate against someone simply because they are LGBTQ. This will go a long way towards affirming legal protections in education, housing, credit and health care — areas where too many LGBTQ people, particularly those who are Black and Brown, still face discrimination.

Joining me to break down the decision is Chase Strangio, the Deputy Director for Trans Justice for the ACLU’s LBGT and HIV Project.

MOLLY
[00:01:01] Chase, welcome to the podcast and congratulations.

CHASE STRANGIO
[00:01:05] Thanks Molly. I am just thrilled to see you and be here.

MOLLY
[00:01:10] I am too. It's really nice to get some good news. First off, before we really dig into the decision, you've been fighting for LGBTQ rights as a lawyer and as a human being for a long time. How are you taking this in right now?

CHASE
[00:01:26] Yeah, I mean, this is just not what I was expecting. You know, I did not think we were gonna win. And so to have this opinion then have so much trouble downloading it, but to see early on that we won and then, you know, to slowly get the pages, you know, downloading, the files corrupted, and there's so many people trying to download it, I'm like, well we won. But is there something horrible in there?

And so there is this sort of, that practical aspect of it. But I think, you know, yesterday there was this incredibly beautiful rally in Brooklyn where 15,000 people came together for Black trans lives. To me, that is the work, that is incredible. And so I was like, whatever happens, we already have won the fight, you know, to sort of center the people whose leadership has always led us. And so I was coming into it today feeling invigorated. And then this is just, you know, an unbelievable addition to that incredible moment from yesterday and, of course, the culmination of, you know, not just the work that I've done, which, you know, compared to the years that so many other people have spent, is just a tiny amount. But this is such a long time coming and it feels, it's so, so incredible. And then, of course, you know, you can't just celebrate the victory because we have to hold the reality that the law is still just the law. And two black trans women were murdered, you know, in the past seven days. And so it's both those things. But absolutely, we're gonna celebrate, we’re gonna honor what an incredible moment this is.

MOLLY
[00:03:02] And we are going to go back to the context that this all comes in. But first, we want to sort of cover the Supreme Court's decision itself. It was actually one decision for three separate cases with three different plaintiffs. Aimee Stephens, Don Zarda and Gerald Bostock. But they all went to ask similar questions at a high level. What were the questions before the court?

CHASE
[00:02:23] Yes, so we had three cases that were argued together. Two were about sexual orientation. And just essentially, is it lawful under Title VII to fire someone just because they are LGB? And in those cases, it was two gay men who were fired for being gay. And then Aimee Stephens' case and the question was, is it lawful under Title VII to fire someone for being trans? So the legal question was relatively straightforward: Does federal law prohibit firing someone for being LGBTQ? And the cases were argued together and the court issued one opinion in all of the cases and ruled for all of the workers.

MOLLY
[00:03:56] And what was the breakdown of the decision among the justices?

CHASE
[00:04:00] It was six to three with Roberts, and joining Gorsuch, who wrote the opinion and then the four liberals.

MOLLY
[00:04:09] Were you at all surprised by the decision?

CHASE
[00:04:13] So, I was yes, I was surprised that it came our way because I'm not the most optimistic person, although it's the right decision. You know, I always felt this was a very straightforward legal case. It's just that the law being straightforward doesn't always mean that you win your case. And so in that sense, I'm always surprised when we win on some level, given, you know, what an incredibly unjust court this generally is. I think that in terms of the language itself, every single thing in this opinion is exactly how we briefed it. And we knew that Gorsuch is a textualist and his judicial philosophy aligns with us winning this case. No question. That's how the case was briefed. That's how the case was argued. And that's how the case came out.
I am a little surprised that Roberts joined. I have to say, I thought, you know, if we're gonna win, maybe we win 5-4 with Gorsuch joining the liberals. I think having Roberts join with Gorsuch is pretty incredible, obviously. All of the other LGBTQ decisions of the last several years have been five-four. Roberts, you know, notably was in the dissent in Obergefell. So he opposed the decision about marriage equality and he ruled for the workers here. Obviously they’re different legal questions. This is a statutory interpretation case, that was a constitutional case.

But, you know, these are human beings living in the world. And the reality is that the organizing and relentless leadership of black trans people, I will say more than anyone else, has changed the paradigm in which this decision was decided.

And so credit goes to obviously our clients who lived the trauma of losing their job for who they are, who fought these cases, and then the people who are fighting for so long and losing so much, but continuing onward, you know, as was shown yesterday in Brooklyn.

And one other thing that I think is sort of hilarious about it is that the decision uses way better language about trans people than it does about LGB people. It says homosexual throughout the decision, which it should say lesbian, gay, bisexual people or sexual orientation, but it says homosexual. And then on the trans stuff, they say things like assigned sex at birth. And so we were so relentless in our briefing about the importance of language on the trans side. And then you read the decision and it's like the language is like from 1984 on the sexual orientation side. So I guess that surprised me that they still use the word homosexual.

MOLLY
[00:06:51] And can we look at some of the text. Neil - Justice Gorsuch wrote the opinion -

CHASE
[00:06:57] Neil? Molly you guys are on a first name basis?

MOLLY
[00:07:00] Yeah, we are. As of today, we are. He’s entered that realm. But Justice Gorsuch, just for today, wrote the opinion and the language, as you said, is important both for its clarity on certain points and for areas that it still didn't get right. Would you read the first paragraph of the opinion?

CHASE
[00:07:22] So this is the opening opinion of today's decision:

“Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have question in members of a different sex. Sex plays a necessary and undisguisable role in the decision. Exactly what Title VII forbids.”

MOLLY
[00:08:11] These sentences are incredibly clear. There is no gray area. I mean, he says the answer is clear and employment cannot fire you for your sexual identity or your sexual orientation. How do you sort of take in that language? Are you happy? Are you, do you have thoughts about it? Was it, was it all that you could have asked for it? It sounds like you argued with this in mind, with trying to get to this place.

CHASE
[00:08:34] Yes. I mean, this is the clear, correct answer. It is undoubtedly because of sex to fire someone, because that person is LGBTQ and they're not mincing words here. You know, it's incredibly clear and it's right. You know, it's if you fire me, Chase, because I have a male gender identity, you would not fire someone assigned male at birth for that. You would only fire someone assigned female at birth. That is because of sex. End of story. And if you fire you, Molly, for being attracted, let's say to women, you would not fire a man for being attracted to women. It is but for your sex. And that's, and that's sort of the simple way of deciding this case that we always thought it’s really simple. You could write the opinion in a paragraph. I mean, that could be it, that paragraph. So I'm really, really happy to see it.

MOLLY
[00:09:34] Let's take you to Title VII from the, it's from the 1964 Civil Rights Act. What protections does Title VII include?

CHASE
[00:09:41] Right. So this is, as the opening paragraph makes clear, that this is Title VII of the Civil Rights Act of 1964. And it covers discrimination because of an individual's race, sex, national origin, religion and color. And the lower courts have, you know, for 20 years when it comes to trans people, interpreted sex to include discrimination against trans people. And more recently, lower courts have held that, you know, it's because of sex to discriminate because based on sexual orientation. But I think, again, sort of looking at the legacy of this moment, it was the civil rights movement that led to the passage of Title VII.

And the leadership of Black people in the United States that led to the passage of this law -- and the inclusion of sex was actually put in as a poison pill to try to kill the Civil Rights Act because they didn't think that it would pass with sex in it. It did. And, and now here we are today, sort of having this incredibly straightforward read of, of the law that was passed in 1964 that makes clear that all LGBTQ people are protected from discrimination across the country. And it was the leadership of Black and Brown people in the civil rights movement. And it was the leadership of our Black and Brown transcestors who got us to this point today. And I'm so humbled to be a part of that legacy.

MOLLY
[00:11:12] And historically, when sex was included in Title VII in 1964, who was that meant to include?

CHASE
[00:11:20] Well, first of all, as a matter of legal interpretation, it doesn't matter what Congress intended in 1964. And that's certainly part of what the briefing has made clear. But again, it doesn't say women. The Civil Rights Act prohibits discrimination against any individual employee because of that individual employee’s sex. And Justice Ginsburg, to her credit, was really the architect of the decisions fleshing out protections against sex discrimination. And she very clearly brought a lot of the first cases on behalf of men. You know, it says because of such individual sex and and that means sex as a system.

That means sex as sex characteristics, that mean sex as sex stereotypes. And the Supreme Court has made that incredibly clear. It didn't mean just, you know, the text, the word itself doesn't mean just one thing. And if Congress writes a broad statute, then that's the end of the story. They could have exempted LGBTQ people from it. They could have exempted men from it, but they didn't. And that's ultimately why we win at the end of the day.

MOLLY
[00:12:23] And what precedent did the court use to refer this interpretation of the Civil Rights Act?

CHASE
[00:12:29] So, you know, they essentially used some of the earliest cases from interpreting Title VII, you know, going back to a case called Philipps and then another case called Manhart, as well as Oncale. But I think one of the most important cases is the case of Oncale, which was a 9-0 opinion written by former Justice Scalia that said that it does not matter what Congress intended in 1964.

And in that case, they held that same-sex sexual harassment is sex discrimination under Title VII. And so when it came to all of the arguments against the workers in this case that, well, Congress couldn't have intended to protect LGBTQ people in 1964. We already had Scalia saying that is not the proper focus of the inquiry. You look to the language of the statute, and if the language of the statute is clear, then that's the end of the story. And certainly, you know the anti-LGBTQ forces in this case, the you know, the employers, the United States, you know, made a big deal about, well, what would the public have thought in 1964? And that just isn't a canon of judicial interpretation. And for better or for worse, the court has moved in a direction where this textual analysis is the controlling analysis. And if Gorsuch had ruled against us and started going on about what Congress meant in 1964, he would have undermined the legitimacy of every single one of his opinions up to this point. Now, that isn't to say that justices don't contradict themselves all the time in the service of an outcome because they do. And so that easily could have happened here. And I think it's incredible that it didn't.

MOLLY
[00:14:11] And as we talked about in the beginning of the podcast, this isn't just about legal precedent and the Supreme Court decision. This was about real people. Can you talk a bit about the people behind the three cases? So Don Zarda, Aimee Stephens in particular were ACLU clients, Gerald Bostock was also part of the historic decision. Can you tell us a little bit about each person?

CHASE
[00:14:33] Yes. I'll start with Amy. Amy was our client. She's a woman who was fired from the job that she had for many years, for six years when she informed her employer that she is transgender and she would be coming to work as the woman that she is. There is many painful things about Amy's story, culminating with the fact that she died just a few weeks ago and didn't get to live to see this historic impact that her life had on the entire country and world.

But one of the things that breaks, breaks my heart is that, you know, she struggled to come to terms with who she is, like so many trans people do. And she really believed that she would keep her job. She wrote this beautiful letter to her employer just explaining who she is. And then she gives him this letter and he fires her.

And that was in 2013 -- she spent the last seven years of her life fighting this case. And ultimately, we intervened on Amy's behalf when the case was on appeal because it was after the election. Originally, the case was brought by the Equal Employment Opportunity Commission. So originally, the United States actually brought the case on Amy's behalf against her employer, after the election and they switched sides.

[00:15:42] We were concerned they would do that. So we came in to defend Amy at the Sixth Circuit and then before the Supreme Court. The two other plaintiffs, the two other workers were two cisgender gay men who also were fired because of who they are. They were fired because they're gay. Don Zarda was a skydiving instructor. Gerald Bostock worked in social services for a county government. In Mr. Bostock’s case, he was fired when they learned that he was a member of a gay softball league, which has absolutely nothing to do with his employment. And Don Zarda was likewise fired when his employer learned about his sexual orientation. Unfortunately, both Amy and Don have died, our two clients at the ACLU. And I think it's just a reminder of how discrimination can be life or death for so many people. Their premature deaths were directly tied to the fact that they lost their jobs. And that is true for so many people. And so many LGBTQ people are unemployed and underemployed, particularly now. And that is even more true for black and indigenous transgender women. And so to create finally clarity that every single worker across the country is covered under federal law, is just hugely important. And it’s certainly not the end of the story. There's so much work to do to make sure that people are not being brutally murdered by police, being brutally murdered because of who they are by, by private individuals. So this is certainly not the end of the fight at all.

[00:17:09] But, for Gerald and Don and Amy, you know, who had to relive their trauma over and over, who had to experience the shame and humiliation of losing employment just because of who they are. And for Don and Amy, who quite literally lost their lives, you know, this is such an important victory. This is such an important counterpoint to all of the horrible things that the Trump administration has said about LGBTQ people and particularly trans people. I am just so honored to have worked on this case.

MOLLY
[00:17:39] Well, let's talk a little bit about the bigger picture here. The decision comes on the heels of the Trump administration rolling out a rule that removes nondiscrimination protections for LGBTQ people when it comes to health care and health insurance. What impact will today's decision have when it comes to pushing back on this rule and other attempts at discrimination?

CHASE
[00:17:57] Yeah, so I would say that those attempts to encourage discrimination through federal agency action are void at this point, as far as I'm concerned. The Trump administration has hinged every bit of anti-trans discrimination, mostly, but anti-LGBTQ discrimination on interpretations of sex under federal law, and it is not for the Trump administration to say what the statutes mean, it's for the Supreme Court to say. The Health and Human Services Agency did not wait for this opinion. They insisted at 4:00 p.m. on a Friday to issue lengthy regulation. But the regulation from an agency cannot contradict a statute that it is implementing. And today, the Supreme Court made clear that prohibitions on sex discrimination include LGBTQ people and the Trump administration can't singlehandedly undo that. Congress could and we're gonna have to be vigilant about that. But the Trump administration cannot. So that rule from my perspective -- and perhaps it will be litigated in the courts, all of these issues are already pending in lower courts -- but, you know, they don't have any legal authority to stand on. And they cited their own briefs at the Supreme Court as their legal authority, and they just lost. So, as cruel and as awful as that rule was, it was essentially just anti-trans screed -- no different than J.K. Rowling's, with about as much legal import.

MOLLY
[00:19:22] There are two other battleground areas, it seems, right now brewing. One is in athletics and the other is in policing. And in particular, the sort of discrimination that black trans women face in relationship to the criminal justice system. Do you think that the momentum created by this decision could have any import there?

CHASE
[00:19:42] Well, I mean certainly the law has multiple roles, one of which is norm setting. And so I think absolutely, you know, this is an incredibly important statement on just the sort of basic inclusion of LGBTQ people, trans people included, in sort of norms of civic life. Again, the Trump administration has hinged the great majority of its discrimination on the interpretation of sex discrimination that it just lost at the Supreme Court and in the sports cases and the restroom cases, in the health care cases. And so, you know, this is going to be hugely important in the context of all of that litigation in the lower courts. Now, when it comes to the material reality of people's lives at the end of the day the law itself is not the final answer. And we know that you can have major civil rights victories and still have, know, horrible systemic violence, deadly violence and discrimination.

[00:20:36] You have Brown v. Board of Education did not resolve the issue of school segregation. This is not going to resolve the issue of discrimination. This is not going to resolve the issue of violence. I think that I would point to yesterday's rally in Brooklyn with 15,000 people showing up for black trans lives, for the absolute momentum of movements to defund the police, for resistance to police violence and police brutality as being far more consequential for defending black trans life than this decision. But those things are related. And I think we see this decision today, in part because of all of that work, because of the leadership of the members of our community, the black members of our community who have been fighting so many intersecting and compounding forms of discriminatio and resisting in so many ways. And so that is where we're going to see the work. That is where we're going to see material consequences, materially meaningful changes in people's lives. You know, so demanding health care, demanding education, demanding employment, decriminalizing sex work and ensuring that people live full, joyous and free lives. And this is a part of that. But this is by no means the end of that story.

MOLLY
[00:21:48] And picking up on employment, employment is incredibly important, especially in the context of LGBTQ people and sort of a history of having a lot of discrimination in the employment sector. What will it mean for LGBTQ people to maintain legal protection against discrimination in the workplace in particular as far as economic prosperity and more?

CHASE
[00:22:07] Yeah. So obviously, you know, not having employment protections can be catastrophic for people's lives, as we saw with Aimee, as we saw with Don. I mean, this is, this is seriously important, being able to, you know, have and maintain a job and not face discrimination because of who you are. Our employment paradigm in the United States is not set up to protect workers. And so I don't want to overstate the reality that this is going to transform the workplace for everyone instantaneously, because unfortunately, it can be very difficult to prove that your employer intended to discriminate against you because of a protected characteristic. In these cases, the employers were very clear that they fired the individuals because of their sexual orientation.

MOLLY
[00:22:47] Right, Aimee was in very high standing at the funeral home.

CHASE
[00:22:50] Yeah, I mean --

MOLLY
[00:22:50] She had gotten a huge raise, she'd been there for six years and then she wrote a letter and then she was fired.

CHASE
[00:22:55] That said, employers do follow Title VII case law. And they do change employment practices. And this is going to have a huge transformative impact on the workplace. And so now what we have to do is ensure that we protect against other forms of employment discrimination that have a huge impact on people who are LGBTQ, particularly people of color, particularly Black people, which is employment discrimination based on past involvement in the criminal legal system. So this is a critical part of this struggle to ensure more financial stability for our community. There's a lot more to do. People are not getting jobs in the first instance, which is very difficult to prove, you know why you didn't get a job. People are not getting jobs because they have a past criminal conviction. People are not getting jobs because they can't afford the transportation costs that you need in order to get to work. They can't afford a Metro card. They can't afford a car. So, you know, we have lots of work to do. But I think this is going to be an important gap filling in the lack of clarity across the country. Because workers in, in South Dakota, workers in Nebraska that didn't have state level explicit protections now have absolute clarity from the Supreme Court of the United States that Title VII protects them.

MOLLY
[00:24:05] And does this ruling have any impact on non-LGBTQ people?

CHASE
[00:24:10] I mean it’s interesting because it didn't go as much into the sex stereotyping as we might have thought. But it does in the sense that it preserves the civil rights laws as they are. It affirms the sort of expansive interpretations of Title VII, and that helps everyone, everyone who doesn't want to be subject to employment discrimination. You know, this is an absolute affirmation of the broad language of our civil rights laws. So in that sense, it ensures that individuals who don't meet sex stereotypes, whether that's, you know, cisgender men who are primary caregivers or whether that's cisgender women who want to wear pants. This is an affirmation of the legal protections for all of those people, for all workers. And a loss would have been catastrophic for everyone. And this win is an affirmation of the current protections for everyone.

MOLLY
[00:24:58] Chase, as we come to a close, may I ask what comes next for you? Where are you getting hope right now? Is this a source of hope? And where do we go from here?

CHASE
[00:25:09] I can't stress enough, you know, how much I'm just still glowing from yesterday's rally in Brooklyn from all the incredible organizers. I feel like that is giving me so much hope. Seeing people in the streets. Obviously, this opinion is giving me hope. I still haven't recalibrated from the expectation of a bad decision. But I also am sort of bracing for the fact that we still have a lot of critically important opinions to come from the court this term. And so I am paying attention to DACA. I'm paying attention to the abortion case at the Supreme Court, the contraception cases. Those impact me personally. And they -- not not the DACA case -- but the you know, the reproductive health care cases impact me personally as a person who has a uterus and they impact everyone who is a human. And so paying attention to that and knowing that, you know, we can just as soon get a catastrophic ruling from this court as we can get an incredibly exhilarating one. And so I'm keeping that in mind, and just holding space for my mentors who have died, you know, including Aimee, who died in the last few weeks. Including Lorena Borjas, who died of COVID in March. Including Flawless Sabrina, who fought for trans lives since the 1950s and who died a few years ago. Including Sylvia and Marsha, who put their lives on the line in so many ways and died way too young. And then just holding space for the joy and beauty of the black and indigenous leaders who have been the heart and soul and brains behind this movement. And I am just going to keep doing what I can to support those visions.

MOLLY
[00:26:47] Chase, thank you so much for being on the podcast and for keeping up this fight.

CHASE
[00:26:52] Thank you so much.

MOLLY
[00:26:57] Thanks so much for listening. We will continue to bring you special episodes breaking down important Supreme Court decisions as we receive them throughout the rest of June and into July.

If you enjoyed this conversation and want to donate to our continued fight for LGBTQ rights, please visit aclu.org/liberty. We so appreciate the support!

And stay tuned for our regular scheduled episode this Thursday on another focus of our LGBTQ work, decriminalizing sex work. Until next time, stay strong and happy pride!

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