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    Ann Rostow: Once More into the Breach with SCOTUS

    By Ann Rostow–

    Once More into the Breach with SCOTUS

    By now you know that the Supreme Court has agreed to settle two major, and related, questions: Does Title VII’s ban on sex discrimination in the workplace inherently cover sexual orientation bias? Also, does Title VII’s ban on sex discrimination in the workplace inherently cover transgender bias? The Court consolidated two gay bias cases to tackle question number one, and accepted a transgender case out of Michigan to address question two. Both matters will be scheduled for oral arguments early in the session that begins this October. Opinions could be announced early next year.

    Join me here at home as I conduct a silent two-minute imitation of The Scream of Nature by Edvard Munch. And let’s follow that up, perhaps, with a shot of grain alcohol.

    Okay then! First, I’d like to reiterate my condemnation of Anthony Kennedy, the man who could have saved us from this terrifying rendezvous with fate. The author of four gay rights opinions in the last twenty years or so, Kennedy twiddled and twaddled around critical points of law, leaving our community short-changed and vulnerable even as we toasted his highfalutin dicta

    It’s as if an aggressive killer were on our trail and each time he attacked, Officer Kennedy showed up, loaded gun in hand, and saved us, calling an ambulance but sending the assailant away with nothing but a stern lecture. Now, the killer is back again and Kennedy’s nowhere to be found. Why didn’t he jail the guy and throw away the key? 

    The answer is, because Kennedy kind of liked the killer. He liked the status quo, keeping us safe but not doing any real damage to those so-called religious conservatives who display their hatred of gays as proudly as we fly the rainbow flag. He liked the balance between the colorful, but slightly deviant, gays and trans people and the worthy churchgoers on the other side. A little old fashioned in their views perhaps, but good people! Much like the fine people who instigated the violence in Charlottesville. 

    Kennedy’s legacy as the champion of gay rights will depend on what happens next term. Will we win a close, but definitive, victory? If so, his caution will have been justified under the “all’s well that ends well” theory. If we lose, either decisively or through a mixed message from a divided Court, he may go down in history as the man who set the stage for the GLBT version of Dred Scott or Plessy v Ferguson.

    Room for Optimism?

    I was searching in vain for some silver lining inside the dark cloud that emanated from the High Court’s April 22 announcement, relegating myself instead to despairing pessimism. At the heart of the Court’s query, in fact, is not simply whether or not we are protected by a 1964 act of Congress that obviously made no specific mention of G, L, B or T.  It’s whether or not GLBTs require equal treatment under the law going forward in the United States of 2020. If the answer is no, our near-term future is bleak indeed.

    To my rescue came veteran constitutional analyst Linda Greenhouse, The New York Times Court watcher for nearly three decades. In a Times op-ed, Greenhouse first noted the lengthy delay between the petition filings and the Court’s acceptance. Months passed while these cases were listed and re-listed for the justices’ thrice-monthly conferences. 

    I had assumed that the justices were arguing amongst themselves over when, whether and how to approach issues that sharply divide American conservatives from the rest of the country. Maybe the Chief Justice wanted to avoid the showdown, or at least delay it. Were they looking for even more input from the federal appellate courts?

    But Greenhouse had a more encouraging theory. By carefully rephrasing the questions under review for the transgender case, she suggested, the Court created the conditions for an expansive ruling, one that could go either way. “I believe,” she speculated, “that there was an extended negotiation among the justices, aimed at crafting questions that would open up the case rather than skew it in the employer’s direction.” As for the two gay cases, Greenhouse assumed that they were likely held back until the transgender case could be sorted out. 

    Greenhouse goes on to illustrate how the justices reframed the stakes in the case that pits transgender funeral home worker, Aimee Stephens, against an employer who fired her after she transitioned, in part based on her refusal to conform to a male dress code. Stephens won her case before a panel of the U.S. Court of Appeals for the Sixth Circuit, and the funeral home asked the justices to address these two interpretations:

    “Whether the word ‘sex’ in Title VII’s prohibition on discrimination ‘because of sex’ meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.”

    And second:

    “Whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employee’s sex rather than their gender identity.”

    As Greenhouse points out (and forgive me for basically regurgitating her thesis) these questions are both phrased to support the antigay answer. Obviously, the men and women of the 1964 Congress were not considering transgender workers when they enacted the Civil Rights Act. As for the 1989 precedent of Price Waterhouse, which concluded that forcing workers to conform to a sexual stereotype was illegal under Title VII, that opinion has not meant that employers can’t ever differentiate between male and female employees, for example with different dress codes. (Jespersen!)

    Instead of agreeing to evaluate these biased assumptions, however, the Supreme Court has come up with its own legal framework, in their own words: “Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.” 

    This sounded ominous to me when I first read it, and indeed I thought it meant that the High Court might be aiming (God forbid) to overturn Price Waterhouse or at least mess with this essential pro-GLBT decision. But after reading Greenhouse’s op-ed, it’s clear that the Court has actually gone to some lengths to level the playing field in advance of legal combat. Greenhouse even finishes her piece by predicting a GLBT win on all counts, the first cheery prediction I’ve encountered in the last ten days.

    Thank you, Linda!

    Because of Sex

    Before we move on completely, you may be wondering what the big difference is between the trans case and the gay cases. The answer to that revolves around the aforementioned lawsuit between Ann Hopkins, a masculine management consulting superstar, and Price Waterhouse, the employer that refused to make her a partner despite her top credentials. A smile or some lipstick might help, the guys advised her. She sued under Title VII and she won, the Court ruling that this type of gender stereotyping was just another form of illegal sex discrimination.

    Lower courts ignored the implications for a decade or more, but gradually judges began connecting the obvious dots between the bias suffered by Ann Hopkins and the discrimination experienced by transgender plaintiffs. Eventually, the dots also connected to effeminate gay men who may have been harassed or downgraded on the job due to their “incorrect” gender presentations. 

    More recently (stay with me!) courts have noted the irony of letting gay men and lesbians sue under Title VII if they sing show tunes or stomp around in army boots, while letting blatant sexual orientation bias continue against straight-acting gay men and women. First, it makes no sense. Second, isn’t sexual orientation bias itself a form of the same gender stereotyping that was outlawed in Price Waterhouse? Isn’t dislike of gays rooted in the fact that by our very nature we don’t behave like proper heterosexual boys and girls? 

    In this way, the main arguments against gay discrimination under Title VII stem from the arguments against trans bias, which in turn stem from the 1989 ban on gender stereotyping. That’s why the transgender case will lead the way as the justices proceed. 

    Oh, I could go on, but I’ll just say this for now. Not long ago I read a book called Because of Sex by Gillian Thomas. It took a look at the ten most influential High Court cases of sex discrimination in the workplace since the passage of the Civil Rights Act. No one serving in Congress in 1969 could have anticipated the expanding definition of sex discrimination under Title VII, and no one looking back from 2019 would dream of taking a step backwards into a past where women couldn’t sue for being sexually harassed in the workplace or where certain jobs were arbitrarily restricted to male applicants. Now, we are asking the nine members of the Court—not to trifle with a sacrosanct set of stone tablets—but to manage the continuing evolution of a vital statute that flows along with the deep currents in our national culture. If they have any respect for the proverbial arc of history, they will not pick this moment to drop anchor on justice.

    Yes, We Have No Gay Penguins

    So, what else is new? By rights I should tell you about a GLBT victory out of the U.S. Court of Appeals for the Third Circuit in a case pitting Philadelphia’s gay rights policy against the minions at Catholic Social Services who wanted to nix GLBT foster parents. But I recognize that I have wallowed in legal news for most of this column, and I know some of you are wondering: “Ann? Don’t you have any gay penguins to tell us about? Or maybe a right-wing Christian caught picking up boy toys on Grindr?”

    No, sorry. I’m still in Scotland, in a charming university town filled with wild daffodils, black and white magpies and dairy farms, where you can walk to two-hundred-year-old bars with shelves lined by three dozen varieties of whiskey (sadly, one of the very few types of alcohol I don’t particularly like). 

    The weather here is like a San Francisco summer, although we’ve had some sunny days in the seventies, when we’ve blown off trips to castles in favor of afternoons on the patios at some of those aforementioned bars. Mel and I have taken up smoking for the duration, which means I look forward to another grueling period of withdrawal in a few days. But it seems worth it. My granddaughters are now old enough to scold us, so we are obliged to sneak around like high school students, hiding from adorable small girls behind outbuildings and strolling down the block when they’re not paying attention. They’re pretty easy to fool. 

    In Ireland, a lesbian journalist was recently shot dead during a protest in an accident that drew condemnation by all sides. In Connecticut, a conservative youth was expelled, ostensibly for spouting politically incorrect viewpoints, but possibly for other, undisclosed offenses. (I chose to believe the school.) And while we’re in Connecticut, Yale Law School is on the defensive for enforcing a non-discrimination policy, which means they won’t subsidize students who work for antigay public-interest organizations during the summer or after graduation. I’m not sure why Yale would subsidize anyone after they graduate from law school, but apparently, they do. Oh! And we elected a lesbian mayor in Tampa, former police chief Jane Castor.

    Meanwhile, I gather that life goes on in Trump’s America, although I’ve enjoyed the respite from the nonstop MSNBC that normally plagues my living room. How does that happen? It seems the TV turns on by itself as soon as Nicole Wallace takes the anchor chair and it stays on until Brian Williams signs off. It used to start with Morning Joe, but at some point, we grew weary of starting our day with self-absorbed jocularity, pretentious discussions of European soccer leagues, Joe’s ponderous sarcasm and Mika’s obsession with women’s salary negotiations as if she were the first to recognize that women have a tendency to sell themselves short.   

    Suffice it to say, we have cleansed ourselves of political nitpicking and breaking news about yesterday’s breaking news, but we will shortly return to Life in these United States and plug ourselves back into the Trump-o-sphere. Until then, dear Readers.

    arostow@aol.com