//  5/6/20  //  Commentary

By Harper Jean Tobin | National Center for Transgender Equality 

This week’s first-ever live broadcasts of Supreme Court oral arguments—also their first ever by telephone—are a test (albeit a pretty easy one) that the justices so far seem to be passing.

They already flunked an earlier, and perhaps far more influential test in this pandemic, by insisting on in-person voting that has caused dozens of new cases of the virus, and counting, in Wisconsin.

But the cases they will decide in the next few weeks, perhaps during the national height of the pandemic, will pose another, equally serious test: Do they actually care what the law says?

That’s the core question in Harris Funeral Homes v. Aimee Stephens, where the Court will decide whether to keep or scrap 20 years of rulings protecting workers from being fired for being transgender. A long-time employee was fired for starting to live as a woman instead as a man. She was either fired for not conforming to stereotypes about her sex, for seeking to change her sex, or for the sex she was assigned at birth—but any way to slice it, that’s sex “because of such individual’s sex.” The outcome will affect over a million Americans, a population with a pre-pandemic unemployment rate three times the national one.

At a time when the US President has promised only to appoint judges who will uphold abortion bans and overturn the Affordable Care Act, it’s reasonable to ask if the justices care what the law says. The pandemic has made starkly clear that Trump exists in his own reality apart from facts and law. What about the Court?

Fortunately they all, especially the conservatives, claim to care deeply about following the text of the law, not politics. Justice Gorsuch wrote a whole book about it, and that book is a roadmap to rule for Aimee Stephens.

Another study aid for the justices: Gorsuch has already been presented with a nearly-identical case as a lower court judge. In Kastl v. Maricopa Community College, then-judge Gorsuch joined a very Gorsuch-like (but unsigned) opinion concluding: “it is unlawful to discriminate against a transgender (or any other) person because he or she does not behave in accordance with an employer’s expectations for men or women.” He could very well copy and paste that straightforward conclusion into his majority opinion for the Court in Stephens.

The key take-away for the justice should be this: there’s no transgender exception to the 1964 Civil Rights Law.

The Trump Administration argues that that doesn’t matter, because Congress didn’t specifically mention transgender people one way or another.

So what? If that mattered, it would still be legal to sexually harass your subordinate, fire new mothers but not new fathers, and refuse to promote women (but not men) who you think aren’t pretty enough.

These examples all have two things in common. First, they single out certain women, though not all women, for discrimination. And second, the Supreme Court recognized decades ago that they’re all illegal.

If Congress anticipated and accounted for every scenario, we wouldn’t need courts. That’s why Chief Justice John Marshall wrote in 1803, “It is emphatically the province and the duty of the Judicial Department to say what the law is.”

It doesn’t matter that lawmakers have proposed bills over the years both to explicitly exclude and include anti-transgender bias, and neither have passed.

Justice Gorsuch said it best in his book: “The text of the statute and only the text becomes law. Not a legislator’s unexpressed intentions.”

Heck, Justice Gorsuch practically begged the ACLU’s David Cole to quote his book back to him at oral argument in Stephens, wondering if in a “close case” judges should avoid controversial outcomes. (This isn’t a close case, but we’ll put that aside.) Well, Justice Gorsuch, according to Justice Gorsuch, even in “close cases” “the dispute remains a distinctly legal one carried out in legal terms.”

Elsewhere, Gorsuch relates telling his clerks to follow two rules: First, “Don’t make stuff up.” And second, “When people beg, and say, ‘Oh, the consequences are so important’ … just refer back to Rule No. 1.”

And again: judges should not “interpret legal texts to produce the best outcome for society” according to their own views, but should apply the law’s written words—here, the words “because of such individual’s sex.” While it’s clear that 20 years of federal and some state protections haven’t caused any feared social upheaval, even a judge concerned about that shouldn’t graft those fears on the these simple words.

Put simply, to rule against Aimee Stephens, you’d really have to make stuff up—namely, a transgender exception in the law’s text. Aimee Stephens did her job for over six years as a man. As a woman, she was immediately fired. At the Supreme Court level, this is about as close to balls and strikes as you ever really get.

What’s more, whether courts will follow the law as written has never been more important, as we watch a President make garish claims of “total authority” over states’ public health policies.

The Stephens case presents a test for Court that goes far beyond her own story: Are there five textualists on the Court? We’ll find out soon.


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