LeGaL Leaders Demand Dignity for LGBTQ People as the Supreme Court Hears Civil Rights Cases

Speaking today from the steps of the Supreme Court, LGBT Bar Association of New York Board President Kirsten Browde offered the following remarks, which can be found in OUT.com:

There was anger in me when I walked into the Supreme Court building. And while I was pleased by most of the oral argument in the three LGBTQ cases heard on this, the second day of the 2019–2020 Supreme Court term, the obvious threat remains that the right wing of the Court will abandon the principals which it has espoused for years, in favor of ideology based rulings that could set back the cause of equality for decades.

As a lawyer, the co-chair of the National Trans Bar Association and the President of the LGBT Bar Association of Greater New York — I see the three cases argued today before the Supreme Court as cases that shouldn’t have required much argument, that shouldn’t have required anything but a 9-to-nothing ruling upholding the employees.

The text of Title VII of the Civil Rights Act of 1964 is simple: employers can’t discriminate on the basis of sex. And it is plain to anyone who looks at the facts of the Bostock, Zarda and Stevens cases that each of the employers directly and unequivocally violated Title VII. Sex was the reason that all three employees were fired. They were dismissed because they didn’t live of to stereotypical actions and presentations of the sex which they were assigned at birth.

Some of the nine justices seemed to think that there is an exception to the principle that laws mean what they say that despite previous cases, where they insisted that the exact language of the law or the Constitution should prevail, this time should be different. Justice Alito made that argument directly, asking how the law could mean what it plainly says, because as he put it, Congress didn’t explicitly say you can’t discriminate on the basis of sexual orientation or preference.

The argument is hypocrisy at its most obvious. I can only imagine Alito’s head exploding were a lawyer to stand before him arguing that the Second Amendment doesn’t apply to various forms of weaponry, whether AR-15s or other weapons of war, because the framers didn’t explicitly include them in the wording of the Second Amendment. But there Alito sat, demanding to know why this case wasn’t different, why the text of the law was somehow not precisely what is says: discrimination on the basis of sex is impermissible.

The Chief Justice’s questioning seemed similarly suspect: he wondered whether ruling for the plaintiffs would eliminate protection for an employer with religious objections to same-sex relationships or transgender status. That, of course, was not the issue before the Court. And while Justice Gorsuch, a confirmed textualist, seemed to view the cases as “really close, really close” his history on the Court is not one of taking courageous stands in favor of principles when those principles would lead to rulings against the right wing that put him on the Court bench.

Justice Breyer, on the other hand, was on fire with precise questions that put the employers and their backers in the Trump administration on the defensive. And the three women on the Court, Justices Ginsburg, Sotomayor and Kagan made the point perfectly: that each of the employees was fired for activities that would not have led to dismissal had they been assigned the opposite sex at birth. In short, the four made it plain that they view the three employees as having been fired on the basis of their sex.

Aimee Stevens story resonates with almost every adult who came out as transgender during their working life. For each of us, it was a choice filled with more than a little apprehension — even as we knew it was the right decision for us. And each of us knows that having come out has not changed our professional skills, has not changed our ability to perform our tasks or to do anything else — including to parent our children. And it mystifies and angers us that today’s cases are here…because the law is simple. You can’t discriminate on the basis of sex.

16 years ago Justice John Roberts swore me in as a member of the Supreme Court Bar — among a group of lawyers who had graduated from Fordham Law. Four years ago I stopped wearing a mask and came out. If Justice Roberts and his court view me as any less capable today than I was then — if they view Aimee Stevens as less capable than she was before she came out — they’re simply wrong.

And if the justices — even the right wing justices — bend the law — the law which clearly says you can’t discriminate on the basis of sex, they’re worse than wrong. They’re perverting our court system for political purposes.

Because at the heart of Aimee’s case — and the Zarda and Bostock cases, there’s one simple commonality. Each of the employees were fired — each was discriminated against — solely because they didn’t live up to their employer’s mental image of what someone of their perceived sex should represent.

And law passed in 1964 by the United States Congress and signed into law by the then President of the United States says you can’t do that.

It doesn’t say you can’t discriminate except when the employee is gay. It doesn’t say you can’t discriminate except when the employee is a lesbian. And it sure as hell doesn’t say you can’t discriminate except when the employee is transgender or non binary.

And when I hear politicians from the current administration claiming there’s some exception that allows discrimination against LGBTQ Americans or any Americans — frankly I’m outraged. And you should be too.

If any of the Justices say they can’t uphold the law as written by Congress, they don’t belong on the Supreme — or any — court bench. Because equality isn’t for some. It’s for all.

The employers and the Trumpers are arguing it’s not. And to this 69 year old trans AF attorney and to the lawyers across the nation and in New York I have the honor to represent and for their LGBTQ clients, that’s just not OK

Speaking from the steps of New York City Hal, LGBT Bar Association of New York Executive Director Eric Lesh offered the following remarks:

One year ago, as Mitch McConnell was jamming Brett Kavanaugh through a Senate confirmation vote, LGBT people stood up and spoke out to demand justice for Christine Blasey Ford, and all survivors of sexual assault. We have not forgotten her bravery.

Today, we rally in NYC and across the country on behalf of Aimee Stephens, Gerald Bostock, Don Zarda, and countless other members of the LGBT community who have faced discrimination at work.

We rally today with the support of 70% of Americans, who stand with us in the fight for dignity and respect. Together, we will hold the nine Justices accountable as they decide whether it should be legal under federal law to fire LGBT people simply for being who they are.

Let’s be clear, LGBT have been fighting and winning employment discrimination cases for years. The lower federal courts have weighed in, and they agree with us. It is sex discrimination to fire someone for being in a relationship with someone of the same sex. It is sex discrimination to fire someone for for living consistent with the sex with which they identify.

This is simple, and if the justices follow the law, they must agree.

But even though brave LGBT plaintiffs and lawyers are armed with the best legal arguments, we are facing an increasingly hostile judiciary. One in four federal judges is a Trump judge. One in three of those judges have anti-LGBT records. Many of them have experience working at anti-LGBT hate groups. The LGBT Bar of New York is fighting for fair courts here at home and across the country.

We will not allow these judges to drag us kicking and screaming back to the 1950s. Queer people are here, and we demand dignity and respect. We are not going back in the closet.