By Kate Sosin and Jeff Taylor
On Tuesday, the nation’s best and brightest shirked the opportunity to ask key legal questions in the biggest LGBTQ rights case since marriage equality, and instead literally went to the shitter.
That is, the Supreme Court was so fixated on what bathrooms transgender people use that justices barely allowed ACLU Director David Cole to make a case for why firing Aimee Stephens (below) because she is transgender violated the law.
Cole was arguing R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, one of the three blockbuster LGBTQ workplace discrimination cases before the Court. Cole represents Stephens, who was fired from Harris Funeral Homes after coming out as trans. All three cases hinge on whether or not Title VII of the Civil Rights Act, which bans sex discrimination, can be applied to sexual orientation and gender identity.
The Court signaled it was split on that case, with Trump appointee Neil Gorsuch stating that he “finds it very close.”
But Cole was hardly through arguing its legal merits before Chief Justice John Roberts started talking bathrooms. Justices then spent the better part of the hour considering that if they banned discrimination, trans people might want to use public bathrooms.
NEXT UP: RG & GR Harris Funeral Homes v. EEOC (Aimee Stephens' case): The gender identity case. They really were obsessed with bathrooms, so, congrats right-wingers, your fear-mongering made it up to the Supreme Court. The first question, from the Chief: pic.twitter.com/ipgUEVInr9
— Chris Geidner (@chrisgeidner) October 9, 2019
“If the objection of a transgender man transitioning to [a] woman is that he should be allowed to use, he or she, should be allowed to use the women’s bathroom, now, how do you analyze that?” Roberts pressed.
Cole sputtered that the answer to that question did not impact the actual case, saying, “How you answer this case will not resolve how you answer that case.”
But Justice Sonya Sotomayor pushed back on Cole to answer the bathroom question. Maybe one solution would be single-sex bathrooms, she mused.
“Meaning what harm would the other women—reasonable [women] feel if a man is using a single sex bathroom, might be another if it is two locker rooms, men and women, girls and boys, and who walks in is something you can’t control,” she said.
Gorsuch suggested a ruling in favor of the employees could cause “massive social upheaval.”
Cole pointed out that federal appeals courts have understood anti-trans discrimination as sex discrimination for two decades.
“There are transgender male lawyers in this courtroom following the male dress code and going to the men’s room…the Court’s dress code and sex-segregated restrooms have not fallen,” Cole replied. “So the notion that somehow this is going to be a huge upheaval, we haven’t seen that upheaval for 20 years, there’s no reason you—you would see that upheaval.”
The concern over trans bathroom use also reared its head in the hearing held earlier in the day, which consolidated two cases, both concerning whether Title VII should be read as protecting sexual orientation: Bostock v. Clayton County, GA and Altitude Express, Inc. v. Zarda.
While arguing what constitutes sex discrimination in the workplace versus legitimate bona fide occupational qualifications (BFOQ), which an employer can consider based on an applicant’s ability to perform essential job duties, Sotomayor raised what she called the “big issue right now raging the country [which] is bathroom usage.”
“Same-sex bathroom usage,” she continued. “How are those cases going to be dealt with absent a congressional exemption other than BFOQ?”
Attorney Pamela Karlan, representing the gay men in the case, noted in order for there to be discrimination there must be injury, and argued that most people would not see bathrooms separated by sex to itself cause injury.
Gorsuch replied by suggesting the other side might not see it that way, and asked to what extent that should be considered, as well as dress codes.
“An idiosyncratic preference does not void an otherwise valid dress code or bathroom rule,” Kaplan replied.
Gorsuch then asked if it would be “idiosyncratic for a transgender person to prefer a bathroom that’s different than the…one of their biological sex?”
“Is it idiosyncratic for a transsexual person to wish to dress in a different style of dress than his or her biological sex?” he queried, before pressing further to ask if Karlan would see that as “acts of discrimination under Title VII as you understand it?”
“Yes,” she answered, and then noted that she was arguing on behalf of those discriminated against on the basis of sexual orientation, not gender identity, and that she felt he would be better served in his line of questioning if it were directed at someone representing a transgender person.
All three of the cases deal explicitly in employment discrimination, not public accommodations, which would address bathroom access.
That justices can’t parse the difference speaks volumes on how ill-equipped they are to critically think through the legal arguments at hand, instead fixating on the same offensive questions that have plagued trans communities for generations: where do you use the bathroom? What’s in your pants?
Transgender people have endured a litany of abuse from the Trump administration these past three years, but many expect that. What will shock the conscience of many is that our nation’s highest court can’t legislate on trans workers’ rights without thinking about where they pee.
“It doesn’t begin or end today,” ACLU attorney Chase Strangio told a crowd outside the Supreme Court. “We’re just going to keep fighting.”
— TransgenderLawCenter (@TransLawCenter) October 8, 2019