How Many Times Do We Have to Say It? It’s not about bathrooms. (And maybe there’s hope yet.)

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By Kristen Prata Browde, President, LGBT Bar Association of New York

Reading the transcripts of the oral arguments at the Supreme Court, as opposed to just listening to the arguments live, as I did yesterday, leads me to a greater hope that not just Justice Gorsuch but maybe Chief Justice Roberts as well may come to realize that the discrimination in the case of Aimee Stevens truly is sex based and thus illegal under Title VII of the Civil Rights Act of 1964.

Perhaps, before a decision is drafted, Justice Roberts’ younger clerks can give him the education he clearly lacked in preparing for the hearing yesterday before the Supreme Court.

Roberts entirely missed the point in turning immediately to what bathroom a transgender woman should use, and, in doing so, wandered into the right wing talking point/trap of discussing what they call “biological sex.” As scientists have repeatedly said, transgender people aren’t changing biology, they have it — but it’s not the binary biology that has commonly been taught, it’s a more complex formulation.

That aside, the Aimee Stevens case isn’t about bathrooms. It’s about being fired for not adhering to the sexual stereotype an employer has of someone assigned male at birth — a point made repeatedly by David Cole, arguing for Ms. Stevens.

Ms. Stevens was fired, in the plainest terms, simply because she wore a dress. And that upset her employer, who, on the basis of sex, as assigned at birth, made decisions about how someone should comply with his dress code.

Rather than ask about the specifics of this case, Justice Roberts fell into the bathroom/lockerroom discussion, joined, surprisingly, by Justices Sotomayor and Kagan and less surprisingly by Justice Alito.

For valuable minutes they pondered what might happen in bathrooms and changing rooms — the underpinning of which is some unreasoning fear that transgender women — if in a bathroom or changing room — somehow represent a threat to cisgender women. That, of course, is false — at least when looked at on the basis of statistics.

There are an estimated 1.5 million transgender Americans. In the United States, in the last 50 years, there has been exactly one instance of a transgender person being arrested for misconduct in a changing room or bathroom. That person was jailed, as she deserved.

There are only 100 United States Senators at any given. In the past few years alone at least three of them have been arrested for same sex sexual misconduct in bathrooms. And don’t get me started about Catholic Priests and Christian “youth pastors.”

So who’s the real threat here?

Ignoring the statistics, Justice Alito took it one step further, apparently confusing Title VII (which deals with employment) and Title IX (which deals with education), asking about trans people in sports. Again, not the issue in the Stevens case, which is about employment discrimination. But even if it were the reality is that the International Olympic Committee has dealt with the question already and has fashioned an appropriate solution: the question isn’t sex assigned at birth, it’s hormone levels in the bloodstream. Cisgender women have been disqualified because they have too much testosterone — and the same rule would apply to a transgender athelete.

Justice Gorsuch comes back later with a question that, when I heard it, stunned me in its basic ignorance of society today. He asked should a judge “take into consideration the massive social upheaval that would be entailed” in a decision that held discrimination against transgender people is unlawful, and the possibility that — that Congress didn’t think about it” and that Congress should legislate rather than the Court rule on the issue.

First — as Mr. Cole observed in response, there has been no upheaval, much less “massive upheaval” resulting from the increased emergence from the woodwork of transgender Americans. Mr. Cole noted the presence of male trans lawyers in the Courtroom, and plainly visible to the justices were at least half a dozen trans and gender non-conforming attorneys — all of them admitted to practice before the Supreme Court.

Justice Gorsuch, and, for that matter, if they were being consistent, Justices Alito and Thomas as well, would hold that if Congress drafted a law poorly but it was signed into law, the plain meaning of the law as it was written controls. They would be, if they were being consistent, plain in their writing that if Congress wanted to fix what they perceived as a mistake it could — but that the Supreme Court should not exercise its power to craft what is properly a legislative solution. That, Justice Gorsuch should recognize, is consistent application of what at oral argument he described as “judicial modesty.”

The arguments of John Bursch on behalf of the employer and Solicitor General Noel Francisco, supposedly representing the EEOC but actually representing Donald Trump and Mike Pence, were predictably offensive.

Bursch led his discussion with a denial of the legitimacy of all transgender people, and went downhill from there, insisting that not being allowed to discriminate against transgender women would lead to what several justices described as a parade of horribles, none of which have ever been the result despite the fact that transgender women exist and have existed throughout our society.

The Equal Employment Opportunity Commission had found unlawful discrimination, leading to Aimee Stevens claim. But the Solicitor General ignored that, carrying on with the Trump/Pence administration’s all out war on LGBTQ Americans.

It was here that Justices Breyer, Kagan and Sotomayor shone, eviscerating Bursch by pointing out that following the logic those supporting discrimination offer one would find there was no violation in laws preventing mixed race or mixed religion marriages.

Justice Kagan noted that Title VII isn’t about groups, it’s about individuals, and is “a statute that uses the word ‘individual’ twice and says is a particular person being treated differently because of her sex? And here, Ms. Stephens, was being treated differently because of her sex.”

Later Justice Sotomayor offered what was the strongest rejection of the suggestion that because Congress didn’t consider transgender issues when passing Title VII they shouldn’t be considered now, asking, “At what point does a court continue to permit invidious discrimination against groups that, where we have a difference of opinion, we believe the language of the statute is clear….At what point does a court say, Congress spoke about this, the original Congress who wrote this statute told us what they meant. They used clear words. And regardless of what others may have thought over time, it’s very clear that what’s happening fits those words. At what point do we say we have to step in?”

To that the Solicitor General offered an answer that would have left schools segregated for decades and society mired in the 1950s.

He said, in essence, never.

Fortunately, in this nation’s history, Courts, and in particular the Justices of the US Supreme Court, have stepped in. They ended segregation. They ended bans on mixed race marriage and granted privacy to those in their personal lives. They gave us marriage equality.

And it’s time for this Supreme Court to continue that tradition. It’s time for the Justices to say the law means what it says, and that it covers all Americans, whether cisgender or transgender, and it does so equally.

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