The Trans Future I Never Dreamed Of
The Supreme Court has now given its approval to something LGBTQ people have long fought for: the opportunity to live and thrive in this country.
About the author: Chase Strangio is the deputy director for transgender justice at the American Civil Liberties Union.
Eamon Queeney / The New York Times / Redux
On October 8, 2019, I sat at the counsel table in the Supreme Court of the United States for oral arguments in a set of cases that would decide whether it is lawful under federal law to fire someone for being LGBTQ. Just nine years out of law school and 10 years after I had come out as transgender, I had never imagined that I would be part of this crucial fight for my community. In fact, if you had asked me in my childhood, I probably would not have been able to even imagine being alive at 37, let alone witnessing and participating in this historic moment.
Title VII of the Civil Rights Act of 1964 prohibits discrimination because of an individual’s sex. Congress’s broad, simple command—that employers must not take sex into account in making employment decisions—has been a lifeline for LGBTQ people who had no explicit legal protections from discrimination under federal law.
For years LGBTQ advocates built a movement and a set of legal arguments that provided protections in employment, education, housing, credit, and later, health care, interpreting prohibitions on sex discrimination to encompass discrimination against someone for being LGBTQ. But in April 2019, the Supreme Court granted review to cases that put this precedent at risk. As with so much decades-long progress, under the Trump administration everything we had worked toward seemed suddenly so fragile.
Three cases were before the Court, ultimately decided under the caption Bostock v. Clayton County, Georgia. The facts were simple: Two cisgender gay men, Donald Zarda and Gerald Bostock, and one transgender woman, Aimee Stephens, were fired just because of their sexual orientation or transgender status. The question for the justices to answer was also simple: Is it discrimination under Title VII to fire someone for being LGBTQ? The discriminating employers argued that it was not. They claimed that discrimination against someone for being LGBTQ is wholly different from sex discrimination and that in 1964, when the law was passed, no one would have imagined the Civil Rights Act covering LGBTQ workers. The Court rejected the employers’ argument, and in a stunning, unequivocal, and sweeping opinion held 6–3 that “an employer who fires an individual for being [LGBTQ] fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” When I saw the decision, I almost couldn’t breathe. It felt impossibly hopeful.
Though the majority applied clear textualist principles, which are often praised by conservative legal advocates, the outcome is an incredible and sweeping win for civil rights. While the Trump administration and the employers who fired plaintiffs Stephens, Zarda, and Bostock would have excluded LGBTQ people from the law’s protection—based in part on the idea that LGBTQ people were despised in 1964—the Court rejected that invitation. Justice Neil Gorsuch wrote, “To refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms.”
This was also a rebuke of the notion the employers and the United States put forward that “no one” would have anticipated applying Title VII to LGBTQ people in 1964. This, of course, is part of a long history in public and legal discourse of erasing the existence of LGBTQ people, particularly trans people, from history. This idea that we are “new” and recently emerged from thin air erases the fact that we have always been here, leading movements for justice. From Pauli Murray, who led the movements for race and gender justice beginning in the 1930s and ’40s, to Sylvia Rivera and Marsha P. Johnson, who fought against police violence in the ’60s, our legacy stretches back before 1964. Justice Gorsuch affirmed this: “The employers assert that ‘no one’ in 1964 or for some time after would have anticipated today’s result. But is that really true? Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.”
Indeed, in 1977, the tennis player Renée Richards challenged her exclusion from women’s tennis solely because she was transgender, and the Court ruled that such exclusion was prohibited sex discrimination. Alfred M. Ascione, who ruled in favor of Richards, told The New York Times, “Most of the medical testimony indicates she is a woman, not in the sense that she gives birth, but socially and physically. She can’t test out as a woman in all aspects, but she is a woman.” And she’s a woman protected by the laws of the United States that prohibit discrimination because of sex—so, too, was Stephens.
Now LGBTQ workers across the United States are unequivocally protected from discrimination under federal law. But that is only the very beginning of what this opinion means. The logic of the opinion undermines almost every action of the Trump administration that has attacked LGBTQ people. Perhaps most important, the Bostock opinion undermines the nearly 350-page health-care rule encouraging discrimination against trans people that the Trump administration promulgated the Friday before the Court issued its Title VII opinion. Filled with anti-trans rhetoric, the rule is premised on the idea that federal prohibitions on sex discrimination do not include LGBTQ people. Now wholly rejected by the Supreme Court, the rule’s anti-LGBTQ provisions should be completely unenforceable. The application of this decision will give trans people a chance at survival that we might not otherwise have been afforded.
In health care, in shelter, in employment, in education, the rates of discrimination against trans people are staggering. Particularly for black trans people, who experience the compounding effect of generations of systemic discrimination, white supremacy, and transphobia, institutional discrimination operates to deprive people of survival opportunities, funneling too many instead into poverty, criminalization, incarceration, and premature death. Indeed, we cannot live if we cannot access health care—including preventive care, emergency care, and gender-affirming care. I think about how had I not had access to gender-affirming surgery, which saved my life, I would not have made it through law school and onto the legal team defending our rights as trans people. If we are to lead the movements that intend to speak for us, we need the material conditions in place to thrive. The Bostock decision makes room for more of us to live and lead.