Article 3: The Supreme Court Considers LGBT Rights but can't stop talking about bathrooms

The Supreme Court Considers L.G.B.T. Rights, but Can't Stop Talking About Bathrooms

By Masha Gessen

4:33 P.M.

On Tuesday, the Supreme Court heard oral arguments in arguably the highest-impact L.G.B.T.-rights cases ever to come before the Justices. The day before, I received what appeared to be a standard memo for members of the press who request a seat at a Supreme Court hearing: "The dress code in the press section is business attire (coat and tie required for men)." It said nothing about women's clothing. It was almost funny. One of the three cases on the docket revolved largely around gender-specific dress codes. And I am nonbinary, which is to say that I am not a man, though I wear primarily clothes created for men or boys. Some days, most adults think I'm a man; other days, most take me for a woman. Children often ask about my sex. I spend little time thinking about the way I'm perceived, unless I'm in a public bathroom. (More on that below.) This time, though, I had to consider it: what if I didn't wear a tie and whoever was enforcing the dress code read me as a man in violation of it? That could make it difficult for me to do my job that day. It was a measure of my privilege that I could take that risk and arrive tie-less.

The court was hearing oral arguments in three cases, from New York, Georgia, and Michigan. Two had been combined, because both involved men who had been fired from their jobs after coming out as gay. In the third case, a transgender woman, who had been living as a man, was fired after she informed her employer of her identity and declared her intention to live and work as a woman. In all three cases, the plaintiffs were arguing that what had happened to them constituted discrimination on the basis of sex, which is banned by Title VII of the Civil Rights Act of 1964.

We won't know the outcomes of these cases for months, but the hearings served as more than a preview of the possible opinions; they also provided a snapshot of the current moment. Discrimination on the basis of sexual orientation is not illegal. Twenty-one states, the District of Columbia, Puerto Rico, and Guam have passed legislation banning anti-L.G.B.T. discrimination, although many have carved out exemptions that severely limit the reach of the law. Marriage equality became the law of the land in 2015, but, in more than half the states in the country, you can get same-sex-married on Saturday and be fired from your job and evicted from your apartment for being gay on Monday. This is what makes these discrimination cases so important: not everyone wants to be married, but everyone has the opportunity to be subjected to discrimination-usually much more often than one has the opportunity to obtain a marriage license.

Pamela Karlan, a Stanford law professor, represented Gerald Lynn Bostock, who was fired from his job as a county children's advocate in Georgia, and Donald Zarda, who was fired from his job as a skydiving instructor in New York. Bostock, who had been working with at-risk children for more than ten years, was fired after joining a gay softball league, in 2013. Zarda was fired after he told a female client that he was gay, in order to put her at ease with being tightly strapped to the instructor. Karlan argued that, if Bostock and Zarda had been women dating men, they could have kept their jobs, and therefore the firings violated the standard set by the Court for Title VII cases-they happened "because of sex," because Bostock and Zarda were men. Karlan proposed a hypothetical: "Two employees who come in, both of whom tell you they married their partner, Bill, last weekend. When you fire the male employee who married Bill, and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that's discrimination because of sex."

When Karlan's half hour ended and it was time for her opponent, Jeffrey M. Harris, a Washington, D.C., attorney, to make his arguments, Chief Justice John Roberts made a joke. He said, "Counsel." The hall laughed. It was funny because Supreme Court convention is to address attorneys by gendered honorifics: "Ms. Karlan," "Mr. Harris." Harris didn't even seem to grasp that the Chief Justice was addressing him, and this caused a moment of quiet levity in the court. "Sorry," Roberts said.

"Mr. Chief Justice, and may it please the Court," Harris said, also making a joke: he added a gendered honorific where a simple "your honor" was expected. He got a bigger laugh than Roberts.

"Touché," Roberts said.

Harris argued that the Civil Rights Act of 1964 was never intended to ban discrimination on the basis of sexual orientation, and that all the state statutes banning such discrimination are proof of this fact-they would not be necessary if Title VII already applied. Congress has consistently declined to consider legislation that would ban such discrimination, making it clear that it is and should continue to be legal.

But, throughout the years, the Court has expanded the understanding of Title VII, especially in the 1989 case Price Waterhouse v. Hopkins. Ann Hopkins, a top Price Waterhouse accountant, was denied partnership for being too butch. She sued and won: the Court ruled that enforcing stereotypical expectations constituted discrimination "because of sex." But Hopkins was straight. Now Harris was arguing that her case did not provide precedent for Bostock or Zarda, who were fired not for failing to conform to stereotypes but simply for possessing the distinct trait of homosexuality. Comparing the gay men to straight women to prove sex discrimination, he argued, is a false parallel; gay men should be compared to straight men, which would make it clear that they were fired on the basis of sexual orientation, not sex.

The Justices and the lawyers pursued this question of sex versus sexual orientation through a series of hypotheticals until Justice Samuel Alito posed one to Karlan, who had returned for her rebuttal. "What if the decision-maker makes a decision based on sexual orientation but does not know the biological sex of the person involved?" he asked.

Karlan couldn't imagine this happening. "And-and how do they know the person's sexual orientation?" she asked.

"Because somebody who interviewed the candidates tells them that."

"And they are unable to tell anything about the person's sex?"

"No."

"So this is 'Saturday Night Live' Pat, as-as an example, right?" Karlan asked.

"Well, I'm not familiar with that," Alito said.

Karlan explained that "you can never tell whether Pat is a man or a woman." She thought out loud. "I mean, theoretically, that person might be out there. . . . Somebody who comes in and says, 'I'm not going to tell you what my sex is, but, believe me, I was fired for my sexual orientation'-that person will lose."

I became a journalist at a time when one was not supposed to cover issues that concerned one personally. The (very few) black reporters working in the mainstream media were not assigned to write about the civil-rights movement. Women were not assigned to stories on feminism. The handful of openly gay reporters were not allowed to write about gay-and-lesbian rights or the AIDS epidemic. The underlying logic of this approach was that reasonable people could disagree on issues that people with a stake in the outcome would be unable to cover in a fair and balanced manner. That this approach to journalism has been discarded in the last generation is doubtless a sign of progress, but it meant that, on Tuesday, I had the opportunity to cover the story of reasonable people disagreeing on whether my rights should be protected-and, indeed, even agreeing that they shouldn't be.

The queer person of unknown sex whom Karlan had such trouble imagining was not just Pat from "S.N.L."; they were Taylor Mason from the Showtime series "Billions" and the person who plays them, Asia Kate Dillon. They were also me. Since I started working in the gay press, as a teen-ager, thirty-five years ago, I have seen extraordinary progress in L.G.B.T. rights; with marriage equality, it was more than I ever imagined possible. And yet, even in the unlikely event that the Supreme Court rules in favor of all three plaintiffs whose cases were heard Tuesday-if the arc of this story, in other words, continues to bend toward justice-I will not live long enough to see the rights of people like me protected by law. The arguments in these cases are predicated entirely on the assumption that sex is a socially and biologically meaningful category. Even the most progressive members of the Court demanded reassurance that a binary view of sex and gender would not be challenged.

Justice Sonia Sotomayor was the first to bring up bathrooms. She pointed to bathroom use as a "raging" issue, and Karlan concurred that separate bathrooms exist "because of sex." Karlan tried to evade the question. She said that requiring that different sexes use different bathrooms was not discriminatory in itself. She said, accurately, that her case had nothing to do with bathrooms. She asked the Justices to redirect the questions of bathroom use to the attorney in the day's other case, R.G. & G.R. Harris Funeral Homes, Inc., v. E.E.O.C.

The original plaintiff in this case, Aimee Stephens, was fired by Harris Funeral Homes when she came out as transgender, informing her boss that she would be presenting as a woman and complying with her employer's dress code for women. The Equal Employment Opportunity Commission sued on her behalf and won. Now Harris was appealing, and the government, which had originally backed Stephens, was now on the side of the funeral home.

David Cole, the national legal director of the American Civil Liberties Union, argued for Stephens. He led with three points. Just like the plaintiff in the 1989 Price Waterhouse case, Stephens had been punished for not conforming to sex stereotypes. Stephens was fired for identifying as a woman "only because she was assigned a male sex at birth"-a clear-cut case of discrimination with a basis in sex. And she was fired for changing sex, which is comparable to being fired for changing religion. In effect, Cole said, Stephens had been discriminated against as both a man and a woman: for being too effeminate for one category and too masculine for the other.

But the Justices wanted to talk about bathrooms. Justice Roberts wanted to talk about bathrooms. Justice Gorsuch wanted to talk about bathrooms. Cole tried to say, in a legal way and a polite way, that bathrooms were not the problem that the Justices imagine them to be. Then Justice Sotomayor wanted to talk about bathrooms.

"Mr. Cole, let's not avoid the difficult issue, O.K.?" she said. "You have a transgender person who rightly is identifying as a woman and wants to use the women's [bathroom]-rightly, wrongly, not a moral choice, but this is what they identify with. Their need is genuine. I'm accepting all of that. . . . And they want to use the women's bathroom. But there are other women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathroom. That's why we have different bathrooms. So the hard question is how do we deal with that? . . . Because the-once we decide the case in your favor, then that question is inevitable."

Cole continued to try to stick to the simple fact that his case was not about bathrooms and that the issue of bathrooms would continue to arise regardless of the outcome of his case. But then Justice Alito wanted to talk about bathrooms, too. "I understood you to say," he said, "that, if your client had been fired for using the women's bathroom, that would be a violation of Title VII."

And Justice Elena Kagan wanted to talk about bathrooms. She engaged with Cole and Justices Roberts and Alito in a discussion that concluded that, seen through the prism of biological sex, the requirement that people use separate sex-specific bathrooms does not appear discriminatory, but, when seen through the prism of gender identity, it might.

Finally, Cole, who had spent the bulk of his allotted time litigating an issue that wasn't relevant to his case, said something that had not been acknowledged by anyone present: a decision in favor of Stephens would not conjure transgender people into existence, because they exist already. "Recognizing that transgender people have a right to exist in the workplace and not be turned away because of who they are does not end dress codes or restrooms," Cole said. "There are transgender lawyers in this courtroom today. . . . There are transgender male lawyers in this courtroom following the male dress code and going to the men's room and the . . . Court's dress code and sex-segregated restrooms have not fallen."

There were hundreds of trans and non-trans activists outside the courthouse-a hundred people were arrested-and there were trans and nonbinary people in the courtroom. We were there to hear a progressive Justice casually mention how uncomfortable our presence made women in their restrooms. I have no doubt that Sotomayor said this without malice-and without thinking that actual trans people were hearing her. But there was Chase Strangio, an A.C.L.U. attorney and transgender man, sitting in the chamber wearing his dress-code-compliant coat and tie. There was Laverne Cox, a star of "Orange Is the New Black." Later, on the steps of the courthouse, Cox pointed out that she had gone to the women's room in the building and the world had not ended.

Cox was elated, she said, to have been present when "the very first case involving transgender civil rights was argued before the Supreme Court." She was right-this was, among other things, a moment of unprecedented transgender visibility. And the fight didn't seem hopeless. Even Gorsuch, in an exchange with Cole, seemed to indicate that he found the case to be close.

Near the end of the hearing, Justice Sotomayor made her position clear. Addressing the Solicitor General, Noel Francisco, she said, "May I just ask, 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? I think Justice Breyer was right that Title VII, the Civil Rights Act, all of our acts, were born from the desire to insure that we treated people equally, and not on the basis of invidious reasons. And we can't deny that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs poorly, not because they can't do whatever is required of a position, but merely because they're a suspect class to some people. They may have power in some regions, but they are still being beaten; they are still being ostracized from certain things. 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?"

Francisco responded that the Court should wait for Congress to act. A few minutes later, on the steps, Strangio was bragging that he had gone to the men's room with Francisco. To think that I could have done that, too. Or I could have gone to the ladies' room with Laverne Cox. Instead, I was stupidly counting the minutes to my train, with its single-user bathrooms, and regretting having drunk two cups of coffee before the hearing.