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    Ann Rostow: D-Day at SCOTUS

    By Ann Rostow–

    D-Day at SCOTUS

    On Tuesday, October 8, the U.S. Supreme Court heard two hours of arguments on the question of whether gays and transgender employees are protected against workplace discrimination under Title VII of the Civil Rights Act of 1964 (which bans job bias because of sex and other factors). The first hour focused on two gay cases; the second hour was reserved for a transgender case. And you know what, dear readers? It doesn’t look great from my vantage point.

    Here’s the problem. The conservatives on the Court bring to the party a tacit assumption that it’s not horrible to discriminate against gays, let alone transgender citizens. Whether for religious reasons, or the ick factor, it’s not nice, but it’s not crazy. The same can’t be said for racial bias or hostility towards religion. Those things are definitely wrong!

    And no, they don’t come right out and say it. But much as Justice Kennedy made sure to keep a window open in his ostensibly pro-gay rulings for the “reasonable and sincere people here and throughout the world” who disapprove of gay men and lesbians, so certain men feel a similar sympathy for the traditional family values of yore. As such, we fight uphill, not just against our hostile adversaries, but against this tepid group who would place us in a special status all our own: not deserving of blatant injustice, but not worthy of full fledged equality either.

    Our second problem with the conservatives lies in their misunderstanding of current law. Title VII does not explicitly cover sexual orientation or gender identity. Nor did the 1964 Congress envision such protections. But in recent years, going back even a decade or two, the assumption has grown that these protections are indeed a subset of sex discrimination and are therefore available to GLBT plaintiffs. Many states and cities have also enacted civil rights laws on our behalf. Most major corporations have ironclad rules against discrimination. Yet despite these gains, the rightwing justices viewed a decision in our favor as a major departure from the norm.

    On the contrary, a ruling against our plaintiffs would halt and reverse our civil rights movement, turn back the clock, and embed GLBT discrimination into federal law for years to come. But the conservatives apparently don’t recognize the simple fact that gay and trans equality has become, or is fast becoming, the status quo. As the insufferably pompous Justice Gorsuch wondered in the transgender case, doesn’t “judicial modesty” require the Court to think twice about a decision that will result in “massive social upheaval?” Even a very close call on an interpretation of a law’s text, he noted, might be determined by consideration of the “drastic change” implicit in a generous reading.

    Massive social upheaval and drastic change? What the hell is he smoking? In his short time on the bench, Justice Gorsuch has proved himself an intractable foe, combining legal gymnastics with a penchant for lengthy questions seemingly designed to polish his future-self-image as an historic icon of the judiciary. At times avuncular, at times professorial, and at times the stern father figure, Gorsuch lunges through a cast of characters in his own head, using counsel and fellow justices as foils.

    I’m sorry. I just can’t stand this guy. At one point, after asking Stanford law professor Pam Karlan an extended hypothetical about transgender women in the bathroom, Karlan had to suggest he interrogate someone who represented a transgender plaintiff—Karlan herself represented the two gay men. At another time, he interrupted a fellow justice in such a dismissive way that I was momentarily shocked. I think it was Kagan, but I don’t feel like rewinding the entire argument to get that right.

    Finally, Gorsuch managed to muse about the textual argument in favor of the GLBT plaintiffs to such an extent that post-argument headlines trumpeted the notion that he might be a swing vote in our favor. He will be no such thing. Not only that, but I’m guessing he knew exactly how his banter would be greeted by observers, and anticipated the extra publicity.

    I could be wrong, and it’s true that Gorsuch is known for hewing close to the actual text of a law under review. In theory, that works to our advantage here, but I’m not buying it in these cases. The same man who insisted that Arkansas had every right to omit same-sex spouses from birth certificates even in the wake of the Court’s marriage equality ruling can twist himself like Gumby in the name of “judicial modesty.”

    To the Stalls, Citizens!

    As Shannon Minter of the National Center for Lesbian Rights pointed out in a conference call after the arguments, one of the ironies here is that transgender plaintiffs have led the way in terms of winning Title VII cases over recent years. In part, that is due to the Supreme Court’s high profile 1989 ruling in Price Waterhouse v. Hopkins, a case you may have stumbled across on multiple occasions in these pages. In Price Waterhouse, the Court ruled that an employer who forces employees to conform to a gender stereotype is in violation of Title VII’s ban on sex discrimination. (In that lawsuit, the business consultants had declined to promote a superstar female associate who lacked the requisite femininity in the eyes of the male partners.)

    Ignored for a decade or so, appellate courts eventually began to recognize that transgender bias is the quintessential example of gender stereotyping. Ironically, the precedent did not translate as neatly to gay plaintiffs, with the exception of, let’s say, effeminate men fired or harassed for their personal style.

    After time, however, courts began to grapple with the notion that while gay-acting plaintiffs might be able to sue under Title VII just like transgender plaintiffs, a straight-acting gay man or woman could still be fired for sexual orientation alone if they were not “stereotyped” by gender role. This anomaly, in turn, led recent courts to acknowledge that the very fact of being gay or lesbian is in itself a violation of gender stereotypes whether or not the employee sings show tunes in the office or drives a pickup to work.

    I traveled this side street only because there’s a chance that the justices will rule in our favor on the gay case and against us on the transgender case, an outcome that would be crushing in any respect, but particularly so given the leadership of the transgender community in advancing Title VII law.

    In fact, I’m not sure how the Court could come to such a conclusion without hollowing out Price Waterhouse in the process, but as Minter pointed out, the conservatives seemed astonishingly out of touch with transgender lives, even calling plaintiff Aimee Stephens a transgender man on several occasions. Meanwhile, their obsession with bathrooms and dress codes was relentless. Speaking for Stephens, the ACLU’s David Cole tried to argue that questions of dress codes and bathrooms were not at issue under Title VII. Earlier, Pam Karlan had noted that sex discrimination requires an injury and there is no injury in providing separate bathrooms or sex-based dress codes. 

    Nonetheless, the injury in the minds of conservative men seems to lie exclusively in the sensibilities of the cisgender ladies who might be distressed by sharing the facilities with their transgender colleagues. This chivalrous concern from the Knights of the Ladies Rooms is always at the heart of these insidious discussions of bathrooms or other women’s spaces that might be infiltrated by The Other.

    A few weeks ago, Housing Secretary Ben Carson worried that “big hairy men” could populate women’s shelters, apparently referring, not to transmen, but to transwomen. Lost in these speculations is the idea that relegating transgender men and women to the facility of their sex at birth would indeed send transgender guys to the ladies rooms, including some big, hairy ones, an absurd outcome rarely acknowledged by these clueless champions.

    The Gay Exception

    This said, much as it was irritating to listen to, there’s a reason people harp on the trans bathroom issue or the idea of, let’s say, gay men in the shower. And it gets back to my first point. Conservatives and even some centrists on social issues can sympathize with hostility towards GLBTs much more than they can green light discrimination on the basis of race or religion. They might be okay with a gay man having dinner at the next table. But taking a shower in the next stall? Of course that would be a little creepy. But that’s not really prejudice. That’s just, well, you know!

    Ask yourself if the justices would go to bat for the racist woman who refused to share a sink with an African American co-worker or the anti-Semitic employer who claimed he could not hire Jews for “religious reasons.” The answer is no.

    At one point, speaking for the Trump Administration, Solicitor General Noel Francisco, said that a ruling in favor of the GLBT plaintiffs would give a complete win to “one side.” Indeed, he was right about that. But the complete win would not go to the “gay side” or the “trans side.” It would go to the “civil rights side.” And who exactly stands on the other side of that line? On race and religion, no one. On gay and trans issues, “reasonable and sincere people here and throughout the world.”

    Francisco was mainly referencing those with religious objections to GLBT workers, noting that state legislatures had included religious exemptions in their gay rights laws. Yet religious interests are already protected under the First Amendment, which has also been interpreted to broadly exempt religious organizations from workplace anti-discrimination law.

    It’s not clear what more Francisco would envision in this regard, because even if your religion denounces homosexuality or transgender people, it’s hard to see how such a tenet would justify refusing to work alongside someone or refusing to hire a GLBT person for that reason alone. Some people claim their faith requires women to stay at home and cook and obey their husbands, yet they could hardly use such opinions to justify not hiring married women or not allowing disobedient wives in the next cubicle. Indeed, Title VII’s very purpose is to protect the American workplace from invidious discrimination, whatever its origin. It was not enacted to protect the invidious discriminators themselves.

    Tell that to Chief Roberts, who remained relatively quiet, but raised religious qualms along with bathroom worries. Justice Thomas said nothing, while Justice Kavanaugh asked one, vague question. Justice Alito hammered our side at every opportunity, and I’ve already discussed Justice Blowhard.

    As for our allies, we can count on the four liberal justices, even though Shannon Minter expressed dismay at Justice Sotomayor’s seeming embrace of several misconceptions surrounding transgender women. When all is said and done, the outcome remains uncertain, but extremely frightening. The Court will rule next spring, at the latest by term-end at the end of June.

    In Other News

    I know that I just spent this entire column on one subject. I’m sorry, but it was important. I skipped coverage of the CNN GLBT town hall, where I gather Warren made some good jokes and Biden said something about bathhouses and nonstop sex. Sorry I missed it.

    There are more horror stories about violence against transwomen and others. Something bad is going on in Uganda. The antigay party in Poland just won a big election. Bill Barr told an audience at Notre Dame that “secularism” is to blame for the ills of American society. And Ellen is in trouble for palling around with George W Bush at a football game, later telling critics that the world needs more kindness and that people who disagree can still get along. That, in turn, triggered even more anti-Ellen reactions from people who think getting along with George W Bush is a step too far.

    I can see both sides, but if pressed, I’d line up behind Ellen and kindness. Plus, as much as I disliked George W Bush back in the day, he’s looking a lot better to me right now. Please get back to me if Ellen goes to a football game with Dick Cheney.

    arostow@aol.com