Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules

My name is Aimee Stephens. I’m 58 years old, and I live in Redford, Mich.

Aimee, I wonder if you could read from the letter that you handed your boss.

Sure.

“Dear friends and co-workers. I have known many of you for some time now, and I count you all as my friends. What I must tell you is very difficult for me and is taking all the courage I can muster. I am writing this both to inform you of a significant change in my life and to ask for your patience, understanding, and support, which I would treasure greatly. I have a gender identity disorder that I have struggled with my entire life. I have felt imprisoned in a body that does not match my mind, and this has caused me great despair and loneliness. With the support of my loving wife, I have decided to become the person that my mind already is. At the end of my vacation, on Aug. 26, 2013, I will return to work as my true self, Aimee Australia Stephens, in appropriate business attire. I realize that some of you may have trouble understanding this. In truth, I have had to live with it every day of my life, and even I do not fully understand it myself. It is my wish that I can continue my work at R.G. & G.R. Harris Funeral Homes doing what I have always done, which is my best.”

I gave it to the boss. And then two weeks later, he came back with his own letter, which was my letter of dismissal. Basically, his letter to me was that, your services are no longer needed. This is what we’re offering. You have 21 days to make up your mind. But if you accept severance package, you will have to agree to keep your mouth shut and not ever talk about this to anyone. And I didn’t think I could live with that the rest of my life. At that point, I knew I had to do something. After all, this was not only happening to me, but to thousands of others. And the only thing I knew to do was basically to take it to court. That’s what I did.

From The New York Times, I’m Michael Barbaro. This is “The Daily.”

Today —

Adam Liptak on the surprise majority that decided the case.

It’s Tuesday, June 16.

Adam, tell us about this ruling on Monday.

The Supreme Court issued a huge ruling, a very consequential ruling. It said that all across the nation, it’s no longer permissible for employers to fire people simply for being gay or transgender. Now, you might think that’s already the state of the world. But in 27 states, there’s no federal protection for gay and transgender workers. Gay people have a constitutional right to get married. They have since 2015. They can get married on a Monday morning, and when their employer found out about it Monday afternoon, they could be fired without consequence, simply for being gay. Until Monday’s ruling from the Supreme Court.

So in the national debate over the rights for gay and transgender people, this was a kind of untouched area — employment.

Right, it’s sort of surprising. I mean, most people I think, think it’s unlawful to discriminate against them for being gay or transgender. But until this Supreme Court ruling on Monday, people were without protection in about half the nation.

And Adam, remind us of the specific cases that are involved in this ruling. I know we’ve talked about them in the past on the show.

Yeah, so there are actually three separate cases, two of them involving gay men, one involving a transgender woman. The cases involving gay men were a government worker in Georgia and a skydiving instructor, both of whom alleged in their lawsuits that they’d been fired for being gay. And the third was a transgender woman named Aimee Stephens, who, Michael, your listeners may remember, because —

Right.

— you had a conversation with her and she described how, when she announced she was going to assume the gender identity that she believed was hers, the reaction of the funeral home for whom she worked was to fire her.

Right, this letter that she had spent years composing in her head and on paper that told her friends and her colleagues and her boss who she was, was actually what ended up getting her fired.

That’s right.

And, Adam, what was the central legal question posed in these three different cases?

The question in the case is whether Title VII of the Civil Rights Act of 1964 — a landmark piece of civil rights legislation which prohibits discrimination based on race, religion, ethnicity, and sex — applies to sexual orientation and gender identity discrimination. And drilling down just a little bit more, the key question is whether the phrase “discrimination because of sex” covers sexual orientation and gender identity.

Right, and as I recall from talking about these oral arguments with you many months ago, the case very much rested, not just on what the entire court thought of the phrase “because of sex” and what it meant, but specifically what the conservative justices on the court, who are now in the majority — what they thought that that phrase meant.

That’s right. I mean, you have a court where the four more liberal votes are pretty much locked in. You know what they’re going to do, and they have to pick up a conservative vote. And the question with this court was, the conservative vote they would ordinarily be sure of picking up was that of Justice Anthony Kennedy, who wrote all four of the major gay rights decisions before this one. But he retired in 2018, replaced by Justice Brett Kavanaugh. And so the court has a five justice conservative majority. And for the liberals to win, they’d have to pick off at least one of them.

And it sounds like they did that.

Oh, yeah, in fact they got two, Justice Gorsuch, President Trump’s first appointee, and they also picked up Chief Justice John G. Roberts. So you got a 6-3 decision in the end. And, Michael, just to put that in context, this is a very conservative court. This is a court that gay rights advocates were terrified of. So to get a 6-3 victory from this court on a consequential, stunning, vastly important decision is really something.

So let’s talk about these two conservative justices who sided with the liberal justices in this case.

Well, the key justice is Justice Gorsuch. He writes the majority opinion. He’s the only one whose language we have in front of us and whose reasoning we know for certain. And he says it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.

So Gorsuch is arguing, you can’t divorce discrimination based on sexual identity, sexual orientation, from gender, and perhaps cultural expectations of gender.

That’s right. He says, listen, it may not be the only factor, but it’s a factor and that’s good enough for this law.

Right, and therefore, by his logic, that word, that phrase, “because of sex” in 1964, clearly applies to gay and transgender people today.

Exactly right.

And so what explanation do the other conservative justices who did not join Gorsuch in the majority give for breaking with him, and with Roberts, if Gorsuch and Roberts found a pretty conservative justification for extending these rights to gay and transgender people?

So there are two separate dissents, but the theme that runs through both of them, Michael, is that it’s just not a natural way to read this set of words. That in 1964, nobody thought that they were prohibiting discrimination against gay people and transgender people. And Justice Kavanaugh in his dissent says, even today, when you ask people what “because of sex” means to them, they will not typically say oh, that means because of sexual orientation, because of gender identity. Then Alito and Thomas, but not Kavanaugh, go on to talk about what they view as the very pernicious consequences of the majority decision, which they say will have an impact on restrooms and locker rooms and college sports and maybe professional sports and religious employers and freedom of speech. Justice Alito even says it might prohibit people from using anything other than the preferred pronouns of the people to whom they talk.

Right, but of course in the end, those three justices were outvoted. And two of their conservative allies went in the other direction. And I have to say, and I don’t know if this is the case for you, it seems surprising that the majority opinion in this landmark gay and transgender rights case was written by a conservative member of the court.

Oh, yeah. No, I think it’s a big surprise to me, big surprise to gay rights advocates, big surprise to the L.G.B.T. community. I will say this, Michael, that if you’d asked me in September what the outcome of this case was going to be, I would have said it’s classic 5-4, conservatives against liberals.

You said that on our show. You said this was —

Right, but once it was argued, once we saw Gorsuch struggling with this textual question at the argument in September, I started to think that there was a live possibility it would be 5-4, the liberals plus Gorsuch. And I guess the chief justice came along for the ride.

But that makes me wonder, does a ruling like this, and the composition of the majority, does that make you conclude that ultimately, we don’t really know this relatively new Supreme Court, this conservative majority court, as well as perhaps, everyone thinks that they do?

That’s a really important point. People on the left are very unhappy that President Trump got to appoint two people to the Supreme Court. But those two people don’t vote together all that often. Overall, their voting will be conservative. But they’re individual people with individual jurisprudential commitments, and they will from time to time surprise you as Justice Gorsuch surprised us in this one.

We’ll be right back.

Adam, how is this ruling being received by those who are champions of religious liberty? Because I have to imagine that they are not looking favorably on a ruling that says every employer, including employers run by people whose religion says that being homosexual is wrong, would welcome this ruling.

Sure, they’re nervous about this ruling. And in dissent, Justice Alito said they’re right to be nervous, that this ruling can make religious people and religious employers on the hook for employment discrimination if they just follow the dictates of their faith. Justice Gorsuch, who is ordinarily very sympathetic to those kinds of claims of religion said, listen, that’s not this case. We’ll deal with that case down the line. But he did say, let me tell you, first of all, Title VII itself has an exemption for religious employers. There are other laws and constitutional provisions which can protect religious people and religious employers. So his basic answer is, we’ll get back to you on that.

Hm, so this ruling may leave open the possibility that an employer could bring future cases that could make it all the way up to the Supreme Court challenging this ruling on the grounds of religious liberty, saying this ruling infringes on my right to practice my religion the way I see fit.

Yeah, clashes between religious employers and their employees are commonplace, and we’re waiting, even in this term, for a decision on whether employment discrimination laws apply to Catholic school teachers. So that clash is something that’s very much on the front burner at the court, but we don’t have an answer yet.

Adam, you’ve been covering the Supreme Court for The Times for more than a decade. And you have watched this debate over L.G.B.T.Q. rights play out before the justices on many occasions. Where does this decision stack up in that history of the decisions that they have made?

Well, for gay rights, it easily ranks with the top three. It ranks with the decisions in which the court struck down a Texas law making gay sex a crime. It stands with the decision establishing a constitutional right to same sex marriage. And now for gay people, we have this enormously consequential decision protecting them from employment discrimination. And let’s not forget, for transgender people, we have the first major transgender rights case from the Supreme Court ever.

So by definition, this is a historic case when it comes to rights.

Some historic cases are symbolic only. This historic case will have a real-world impact for lots and lots of people.

It’s interesting that this decision comes three and a half years into an administration, the Trump administration, that has repeatedly taken actions to restrict the rights of transgender Americans, in particular. You know, banning them from serving in the military, telling the military to stop paying for gender confirmation surgery. And just about a week ago, narrowing the definition of sex discrimination in the Affordable Care Act to omit protections for transgender people. So how does Monday’s decision affect those? Because after all, the United States government is a major employer, right?

Yeah, so as an employer, it’s subject to Title VII like other kinds of employers. When it’s talking about health care, when it’s talking about the military, those are different statutes, and whether it has the power or not to disadvantage transgender people is an open question. This decision of course, gives you some sense that challenges to Trump administration actions would meet with positive reception at the court. But they’re different statutes in different settings, and the president gets a lot of deference when it’s the military who’s involved. We do have a quick sense that President Trump is prepared to accept the Supreme Court’s decision on Monday. He was asked about it at a press availability and he said, they ruled, and we live with their decision, a very powerful decision.

Speaking of that kind of atmospheric change, I have noticed that in the protests that we’ve been seeing all over the United States for the past few weeks, that in addition to protesting against racism, demonstrators have taken up the issue of trans rights and calling for the protection of black trans people, for example.

Yeah, so society is moving very fast on these issues. The protests reflect that. One thing that struck me that also reflects it is that more than 200 major corporations filed briefs in these cases saying, please subject us to these laws, please make it possible to sue us. Because the commitment among very large parts of society to equality for black people, gay people, trans people is moving quite quickly in the direction of equality. And the Supreme Court, which is seldom very far out of step with the American public, as reflected in this decision, seems to agree.

Adam, what has been the response from the plaintiffs in this case? I remember speaking with Aimee Stephens after the oral arguments, and she had some real doubts about whether the court was going to ultimately rule in her favor.

Yeah, that’s right, Michael. There are three plaintiffs in the three cases, two of them have sadly died, including Aimee Stephens, who died just a few weeks ago. So she didn’t see the result of her lawsuit. But she did sketch out some thoughts in anticipation that the court might rule in her favor. So she wrote these words. “Firing me because I’m transgender was discrimination, plain and simple. And I am glad the court recognized that what happened to me is wrong and illegal. I am thankful that the court said my transgender siblings and I have a place in our laws. It made me feel safer and more included in society.”

Thank you, Adam.

Thank you, Michael.

They asked me a question. And that question was, are you willing to see this through to the end?

And I told them then that I was raised on a farm, that I was used to hard work, and that I didn’t give up so easily. They’ve had people, I guess, in the past, who started this process, and it can get to you to the point that you just want it to be over. And you say well, I’m done. I’m not going any further. Or perhaps they try to settle out of court.

I had in my mind what I needed to do, and it wasn’t to really settle out of court. It wasn’t to just give up and walk away. And that yes, I would see this to the end.

We’ll be right back.

Here’s what else you need to know today.

In a major reform by the nation’s largest police force, New York City is disbanding its anti-crime unit, a team of 600 officers who patrol the city in plain clothes that has been involved in some of the city’s most notorious police shootings.

The decision makes the N.Y.P.D. one of the first police departments in the country to begin defunding and dismantling its operations in the wake of nationwide protests.

And on Monday, the Food and Drug Administration reversed course and revoked its emergency authorization of two malaria drugs, hydroxychloroquine and chloroquine, as treatments for Covid-19. In March, the F.D.A. allowed the drugs to be used by hospitals treating patients with the coronavirus. But studies since then have shown that the drugs are unlikely to be effective, despite claims by President Trump, who has repeatedly promoted both of them, and who said he had taken one of them himself.

That’s it for “The Daily.” I’m Michael Barbaro, see you tomorrow.