The Historic Trans Rights Case Before the Supreme Court
From the ACLU this is at liberty. I'm Emerson Sykes a staff attorney. Ernie here the ACLU and your host on October eighth the 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 art the ACLU is representing. Amy Stevens a trans woman who was fired after she came out to her employer with us today to take a deep dive into the Stevens case and the broader interface for Trans Rights is one of Amy's lawyers my formidable colleague Chase Strand Gio deputy director of the ACLU'S LGBT HIV project and as of last week an an emmy award winner chase base very much for joining us today. Welcome back to the PODCAST. Thanks for having me so I can't start anywhere except the emmy red carpet. What on Earth were you doing doing at the Emmys well. This was a surprising turn of events when I went to law school. I didn't think you know what I'm GonNa make it to the primetime emmy red carpet but what last week I went with Laverne Cox to the emmys our goal is really to raise awareness about the cases before the Supreme Court that are answering the question question of our 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 bag pop culture celebrity that 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 mazing hand clutch that October eighth on it and a rainbow flag was really cool but you weren't a guest at Emi's you and our colleague. Molly Caplan also won an emmy. Can you tell us about that project yeah so two days later at the news and Documentary Emmys the ACLU was nominated for a film about Chi- shop 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 now I'm coming to terms with her Trans Ness 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 people especially for people who are parents for anyone who's sort of struggled with any aspect of coming to terms with who they are. There's something really resonant and personal about it and and then it on the news and documentary emmys and that's also pretty exciting a well deserved award and it's a really powerful short that people should definitely check out. It's not every case that lends someone at the emmys but it does seem to be something particular about the fight for Trans Rights where we know that the courts courts aren't going to be enough and there is this big piece of changing cultural norms well. How do those two parts of your job fit together. I sort of think this should always be a part heart of legal work. I mean the reality 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 around 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 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 not the country is aware of what it means to be trans and so we can't win the fight if just fighting in the courts and so so much of the work is cultural production Russian work too well. I WANNA come back to some of the stuff that you've been doing outside of the courtroom but let's zero in a bit on the case. That's before the Supreme Court next week. Amy Stevens 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 yeah so amy's he means 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 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 very young age that she is a woman and she started to seek counselling and with the support of her wife decided that she could no longer live this lied. She informed her employer. She wrote this beautiful letter coming out saying I am Amy Stevens. I am a woman and I'm GONNA come to work as my authentic self and then he just fired her and she the at the time this was in two thousand thirteen filed a complaint with the Equal Employment Opportunity Commission and so the the case has been making its way through the courts for the last six years and the central question is does title seven of the Civil Rights Act which prohibits discrimination because of sex under federal law include discrimination against someone because does 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 and and lower courts have really come around to hold a not in a variety of contexts over the past two decades have grappled with it both as sort of changing sexes because of saks 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 and disagreeing with the notion of 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 our way to the courts have ruled in favor of transit employees incomparable context and also the way the lower court ruled in favor of amy and an addition to the Stevens case. There's also so a case addressing sexual orientation and whether that is protected by sex discrimination laws as well. Yes there's two cases that deal directly with the question of whether discrimination discrimination because of Saxon compasses discrimination because of sexual orientation and in both those cases the facts like the fax. Amy Stevens case are an employer fires and employee clearly wants 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 and a comparable comparable question of whether titles seven prohibits those firings will the way you present the case in the reading that I've done about it. You are right. It does sound intuitive to me how can be discrimination based on Trans not be discrimination based on sex but this is not going to be the easiest argument right so what is the biggest challenge to this win that it seems like a no brainer to you and me I think the two main arguments that our opponents are advancing are one is grounded in sort of what title seven is about so the other decided saying well in one thousand nine hundred eighty four there is no way that Congress intended title seven 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 courts job is not to discern what Congress may or may not have wanted in nineteen sixty four. 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 was someone who in a different title seven case involving same sex sexual harassment said well it may be true that Congress didn't anticipate title seven covering sexual harassment between two men but they wrote abroad statute and our job is to apply it and that's all we're gonNA deal and in a nine zero opinion essentially said title seven encompasses harassment between employees ways of the same sex end of story and so that's sort of the response to while Congress could never wanted this because that's not the test and then the other argument that the other aside is making is really one that's playing on fears of Trans Ness and also commitment to enforcing gender norms and that argument is if we allow Trans people people to be covered under title seven then we're going to abolish separation altogether and this is a total red herring for two reasons. The first is that when a trans person enters a segregated space consistent with who they are. The space remained 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 sort of saying our existence collapses sex segregation and 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. Ken See men and women as fundamentally different and treat them differently which is really countered a title seven altogether together and so they're saying well titles have been was never intended to ask discrimination and less 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 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 thirty years but they are raising that argument well that last point 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 whom whomever of what gender norm or sex should be this really implicates anybody who wants to break in any way from that traditional framework. Mark Yeah and I think the scariest thing is that the employer would get to decide who does so you could come in and be heterosexual sort of traditionally masculine. I skill in man and say that I have to leave at four PM today to pick out my kid and several times last employer could say whoa. WHOA WHOA men are the primary breadwinner is you can't be responsible for child-rearing in this way and so I'm going to fire you and obviously that's an extreme example but that that is the type of gender role. Darrow Taibbi today are seeking to enforce with many of the arguments they're advancing in this case will the other side and 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 the religious right social conservatives of various stripes but there's also maybe the most troubling or most difficult upset of opponents are doing it in the name of what they consider feminism. Can you talk about that sort of strain of attack. Yeah there are groups that are committed to sort of strain of anti trans rhetoric under the guise of feminism and their argument in 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 context because 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 People are fundamentally at odds with women's rights. I do want to point out first and foremost that this is a very fringe small subset of people who do this. In the name of feminism the major women's rights rights groups are wholly on the side of the Trans Employees and set of cases including the National Women's law center. What was formerly now know your nine fine. All of the groups that we see leading the fight for gender justice on the time are sort of arguing that our liberation tied up with yours and if the court rules back sex discrimination protections what we know to be true is that sis women non transplant will be hurt by that. I think that the group of people who are claiming that Trans Women are men and and not Trans Ness is a threat to womanhood. Somehow are a group of people that have so tied up their own identity in relation to the 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. I think in the context of marriage equality we would see a version of this argument where people would claim somehow that same sex couples could get married it would undermine the marriages urges a 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 and I will say that he's largely being led by white women because they 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 Black Women Immigrant Women Disabled Women Queer Women and 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 we can't define any group for liberation ration- in relation to excluding others. I would say that is exactly what they're doing. It's important to highlight that this is a fringe element. It's a vocal fringe but it's a fringe elements. It seems like they're folks who are quite set in whatever their ways are. Their views are on gender because of their deeply held religious beliefs or other sort of deep ideological commitments but who's in play here. WHO's minds. Do you think we can change. I mean you've talked a lot about your family. Your Dad is 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 people who you can possibly convince. Who Do you think you're trying to who who's not there yet that you think you convince. I mean I think there's two ways of thinking about what types of convincing they need to happen. There's this sort of legal convincing and I really do think that the argument were putting forth is a very straightforward textual argument and that we should be able to convince textualist within in the legal world that 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 explain why you don't like Trans People without using the word sex at some point and so I think that is sort of a conservative argument that should and I hope will win in the courts particularly in the Supreme Court where we actually have to convince one or two people but that isn't GonNa win the day for Trans People that isn't GonNa Save Trans lies as Monday mentally as sort of culture change work and power and base building work well and I think there we have to do two things one. Is We have to continue to send around people so that people see us for who we are that you know in people's minds we may threaten everything they believed to be true but the more that you just engage the person it starts to break down that assumption and so that 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 you you as part of the project of gender liberation in the United States is really challenge the idea of the gender binary and what it means to have vijender. I think we're really fixated on gender norms and biological notions of gender that we're actually moving backwards in some ways and whether it's sort of a response to anxiety whether it's response to progress. I think that we actually need to really sit down and ask ourselves. Why is it that we can't conceptualize allies a human being without putting them in a box of male or female and why is it that we believe that our sex characteristics are so neatly broken down in a binary when it's just not true both that people who have intersex traits and for people who are trans and for many other people whose characteristics exist on a spectrum whether it's related to hormones or genitals IOS or chromosomes which by the way many people don't know about themselves and so I think a lot of work in sort of challenging the assumptions that we make about gender and our bodies is 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 he thinks can happen. We're obviously we're going to win nine zero so you know what school did write a nine zero opinion and on call as I mentioned and I think that it is unlikely unanimous. Decisions are not the norm from these days and I think it would be very shocking if we saw one here but I do still think that's how it should come out. I think that we have obviously the four Liberals House and 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 to the universe. That is the legal arguments I speak for themselves. These are straightforward cases where individuals were fired only because of their sexual orientation or trans status the straightforward questions and a 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 change sex that is because of sex this is not a case that ask the court to define what sex is it is a case that asked the court to identify the scope up 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 style or anything like that they have to say is the sex-discrimination exactly they have to say is the sex discrimination and the other side is always saying well. You should go to Congress and get 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 seven is operating in ways that they don't like then they certainly only 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 take five. I believe it to 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 had hands but turning back from the court to the social side of Trans Rights Movement. You talked about the importance of centering trans people people telling their stories. Having people understand that Trans people are people as does that may be to think that that's something that you have to convince people but you know you think about the LGBT did you bt movement and just the exposure of people coming out as gay and how that changed so many people's minds just to realize that their coworkers their friends their family members 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 takes pleasure and some increased rates. Can you talk about the sort of balance between the need for increased visibility but also the need for privacy. Yeah I mean I think there are two really important things I think that we should be thinking about here with respected sort of visibility and representation as we saw in the context of marriage equality and the Movement for our LGBT writes that obviously sort of changing the public conversation had a huge impact on the policy and legal victories that we were able to see what was considered a relatively short time period hidden always true of civil rights movements you know you sort of integrate into the sort of popular culture public discourse and it does have an impact but but I think as as always true in particular 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 the as the people who are experiencing the most violence are the Black Trans Women on the streets who are seen as visibly trans in their everyday lives who are now being murdered at sort heard of epic proportions and so we can't 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 eh and meaningful changes on the ground that keep people safe from discrimination and also safe from violence and any other thing. I would say is that the more conversations that we have about Trans Hans Ness 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 points you is we represent to trounce girls in Connecticut who are in high school and who happened to be successful track runners and in the midst of sort of the conversations about trans equality the as we've seen sort of trans representations on TV rise these two individuals are the subject of such unbelievable vitriol and so many campaigns pains against their very existence that it we're only looking on poems and Laverne Cox Ami's and thinking that we've solved it and not seeing what's happening to like individual black actress 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 it's 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 it's an important point and as to the bigger sports fans in the ACLU. I WANNA bring you back for a full conversation just on Chan's in sports but I can't wait. 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 taking on free speech and especially working on free speech and racial justice. The division between our person hood in our work sometimes gets blurry and there's an old joke about like. Are you a black professional or your professional black meaning. Are you a black person. WHO's a lawyer is your job to the black and that's always always I think a tough balance 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 what about a lot and talked about a lot as well so I don't know if there's a analogous saying. Are you a trans professional or professional chance. But how do you sort of conceptualize those roles yeah I mean I think this is a really important question for anyone who's sort of breaking into a world that has dominated by those who are different and almost almost been definition exclusive of your group of people and when it comes to sort of big legal nonprofits that are mostly. SAS mostly white mostly straight okay. I think there are a lot of questions about what it means to be an outsider and not and what is our role and I think for me as sort of a white trans masculine lawyer are there is a lot of access that I have 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 aunts ability to use that power to be as you might say sort of professionally trans because I just have felt there are not 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 make my transnet 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 could would you be trans. Could you be a trans woman of color and not just be cast as a victim but seen as a leader and our movement has been led by Trans Women of Color and and so I think the danger of making precious the role of the civil rights lawyer is that we ended up sort of putting primacy on the voices of the white formerly educated individuals individuals within bt Q. 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 is felt very much like my responsibility to use my trans ness as well as name my access in order to break down some of the assumptions about who 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 oh costs that carry everyday and I continue to carry in the hopes that it will be a value in the larger movement for transliteration and in a lot of our listeners are younger folks who are aspiring to be the next chased. Ngo In some way shape or form. It sounds like what you're saying is be courageous but also so be humble. Are there any other words of advice that you would share with folks who are looking to join the movement or already in the movement but an earlier stage of their careers any words words of advice for a young aspiring chase. I mean I think from my perspective anyone who wants to come into legal work I would say yeah definitely be courageous and be humble. 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 into name. I'm not I think especially among lawyers expectation of speaking as if our authority is 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 so knowing that and then also and something that I say a lot lot is sort of naming that there is no perfect interventionist system that is predicated on violence system that was organized and founded on anti blackness and maintaining chattel slavery. This is a 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 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 in hold ourselves accountable and those that were working with accountable accountable and that means being honest about the work that we're doing and saying yes we are at the Supreme Court next week and that will have a huge impact on translates it will 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 make and so. I think that to me is how we remain accountable and the work that we do. It's an extremely powerful message to young trans activists but also to all of us and what keeps you hopeful. I if hopefully it seems like you're hopeful. I you know 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 I think that is a gift that I am incredibly grateful for and I stay hopeful because I know and have met and worked with the elders in our community who who have fought so hard and survive 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 pupil who a lock in cages jazz can keep fighting every day then certainly I can to who are we to be hopeless yeah exactly thanks very much for all your amazing work on behalf of the ACLU on Baffoe Trans Rights and not at the Supreme Court next week all right thanks Emerson. 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 www dot aclu dot org slash liberty really appreciate it doe next week piece.