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‘You're Not Allowed to Read Transgender People Out of Protection Because You Dislike Them’ Janine Jackson ([link removed])


Janine Jackson interviewed attorney Ezra Young about the Supreme Court’s LGBTQ ruling for theJune 19, 2020, episode ([link removed]) of CounterSpin. This is a lightly edited transcript.
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Janine Jackson: The Supreme Court ruled ([link removed]) this week that Title VII ([link removed] VII prohibits employment discrimination,Rights Act of 1991 (Pub.&text=Be it enacted by the,Civil Rights Act of 1964) of the 1964 Civil Rights Act protects people from job discrimination based on sexual orientation or identity. In other words, it is illegal for employers to discriminate against a worker because of their sexual orientation or their transgender status.

That might sound like basic fairness, but the ruling was reported as a surprise ([link removed]) , given the court's conservative majority. So how did it happen, and how far reaching are the repercussions?

Ezra Young is a civil rights attorney whose litigation and scholarship center on trans rights. He joins us now by phone from Brooklyn. Welcome to CounterSpin, Ezra Young.

Ezra Young: Hi, thanks for having me, Janine.

JJ: We'll talk about arguments and impact, but first, I wondered: What was just your initial professional and/or personal reaction to the court's ruling ([link removed]) on Monday?
Ezra Young

Ezra Young: "Generally applicable nondiscrimination laws protect everyone, including unpopular groups, including, in this specific instance, LGBT people; and we're not going to read extratextual exceptions into them."

EY: Personally and professionally, I felt vindicated for several reasons. Firstly, I'm transgender, I'm also bisexual. And this is obviously a landmark opinion. It affirms that generally applicable nondiscrimination laws protect everyone, including unpopular groups, including, in this specific instance, LGBT people; and we're not going to read extratextual exceptions into them.

That's huge. That's tremendous. And as you said, Janine, for this court in particular, it's somewhat surprising that they would come down on the side that they have. Professionally, I've worked the last eight years of my life pretty narrowly on sex discrimination laws, specifically as to transgender people, litigating and writing about why these laws do protect transgender people in a lot of different instances, and most of my cases have been Title VII cases, so this is a great thing to see.

JJ: Listeners will know that this was two sets of cases: two suits from gay men who had been fired because of that, Bostock ([link removed]) and Zarda ([link removed]) , and then Harris Funeral Homes v. EEOC ([link removed] Court Case&text=Aimee Stephens had worked for,director at R.G. and G.R.&text=She was fired, the EEOC,fired her because she's transgender.) , which was the gender identity case brought by Aimee Stephens ([link removed]) , who was fired when she told her employer that she was transitioning. So what, simply put, was the argument that the court wound up supporting 6-to-3?

EY: The opinion ([link removed]) written by Justice Gorsuch essentially says that the court is going to read the statute as written. The statute says employers may not discriminate on account of a number of different statuses, one of them is “sex.” It doesn't really say what “sex” is; there are a few examples, many of which pertain to pregnancy discrimination, because of other cases. But literally, it just says whatever sex discrimination is, it’s prohibited in employment.

So most of Justice Gorsuch’s opinion tries to reason out how they could figure out what Congress meant or didn't mean in 1964, and a good chunk of the opinion goes into what I think is very important, both in this case and other cases: How we cannot import old historical biases that may have existed when a statute was passed, and read those into a statute if Congress didn't write them in. Meaning, maybe Congress didn't like transgender people or gay people or lesbians or bisexuals in 1964; that's probably true. But because they didn't write in that exception to the statute in express words, that can't carry the day; we have to just read the statute as written.
California Law Review: What the Supreme Court Could Have Heard in R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens

California Law Review (3/20 ([link removed]) )

JJ: Not to say I told you so, but you did kind of tell us so, actually. Remembering that we are laypeople, what led you to say in your California Law Review piece ([link removed]) in March, that if Harris—that's Aimee Stephens’ case—were to be won, that it would come down to that textual reading that you've just described, saying we're not talking about intent; we're talking about the words on the page, and that it would come down to Gorsuch?

EY: This is something that a lot of legal scholars and laypeople equally have gotten wrong for a very long time—and I mean a long time, basically for the last 40, 50 years. A lot of people have assumed that ideologically conservative judges and justices would be against recognizing protection for transgender people, as well as LGB people, under Title VII. But actually in the court decisions since the 1970s, and since these cases first started coming up, it's actually been the ideological conservative judges who have pushed the idea that LGBT people are protected…which, it sounds baffling, right? I realize that.

So the first circuit case ([link removed]) to go up in the 1970s in the Ninth Circuit, which is known for being a fairly liberal jurisdiction, it was the two liberal judges on that panel who said that the transgender person wasn't protected. It was a Nixon appointee—Judge Goodwin ([link removed] Theodore Goodwin is a,Nixon.) , who is not liberal by any means—who wrote a pretty lengthy dissent. The language is a little bit wonky because it’s from the 1970s, but it more or less tracks what Justice Gorsuch wrote in his opinion just a few days ago—more or less just says, “There's no exception here. We have to read the text as written. This might be weird, this might scare us, this might be odd to some people, but those are fact issues, and those aren't really relevant to what the law says.”

And again and again and again, very, very conservative judges ([link removed]) —another example is Judge Pryor ([link removed]) from the Eleventh Circuit, also very, very conservative—have come out in favor of transgender people.

Now, Justice Gorsuch in particular? Overlooked at the time he was nominated, by many people: Justice Gorsuch, then Judge Gorsuch in 2009, in a Ninth Circuit opinion, he sat by designation because there was a gap in a panel, sat on a case much like Harris, it was a transgender woman who was fired for being a transgender woman. And though the opinion’s per curiam, which means no judge signed their name to it—sometimes that just happens, doesn't really mean anything—but that opinion ([link removed]) was written in a tone that looks like Justice Gorsuch, and more or less came to the same reason that he came to this week in Bostock: There's no exception to transgender coverage; it doesn't say that in the text, so we're not going to find an exception. Pretty, pretty big thing in 2009. My thinking was, if he was willing to go that far in 2009, which I think was the right decision, I don't see why in 2020, he'd go back on that. If nothing,
he's pretty principled, he sticks to his guns. I don't always agree with him on a variety of issues, but he doesn't just flip-flop on case to case. So that's much of what I guess went into my reasoning.

JJ: Maybe it's worth spelling out what we're talking about when we talk about the plain textual reading ([link removed]) of Title VII, of sex discrimination. The court seemed to be saying, “If you're trying to discriminate against a lesbian, you will say, ‘Well, she's dating a woman!’ If she were a man, would that be a problem? No? Well, then, it's sex discrimination." It really is kind of straight along those—straight!—it really is along that line, that simple, essentially.

EY: Yeah, essentially. And the vast majority of courts to ever hear these cases have come out in that way. And that's something else that’s sort of a lost history in Title VII litigation. This might be a political football right now—well, maybe no longer after Monday—but for decades and decades and decades, the vast majority of judges to hear these cases, regardless of what party appointed them, regardless of their personal beliefs and religious affiliations, any of those things, the vast majority of judges thought this way. This is not a controversial stance, legally.
WaPo: What you should know about the Supreme Court’s landmark ruling

Washington Post (6/15/20 ([link removed]) )

JJ: The Washington Post's Jennifer Rubin wrote ([link removed]) that this ruling reminds us that:

While we might be slow in getting there and are diverted time and again, Americans can eventually be prevailed upon to come down on the side of fairness, equality, inclusion and simple human decency.

That sounds nice and everything, but it makes it sound as though the expansion of civil rights is like water running downhill, with the implication that we can do something other than fight tooth and nail every day for it. What do you make of that?

EY: Well, I think that's one way to look at it, maybe a century from now, when it does seem so obvious, when we haven't actually lived the day-to-day struggles of what it took to get this opinion, right? This took decades upon decades of scholars; of workers, everyday workers, standing up for their rights; lawyers like me, putting their livelihoods on the line to try to push this forward. Plus a lot of luck, having to seat a conservative justice who was willing to stick to their guns on this issue and was able to speak to his colleague, Justice Roberts, to get him to side on the right side, right. It took all of these things; it took a lot of luck, to be frank, on top of a lot of hard work, a lot of blood, sweat and tears.

I mean, I think it's good to look at it as: this is an American value now, that we do the right thing, read laws the way that we should, and we don't try to diminish Congress's intent by our own prejudices. But it misses, as you suggested, Janine, a huge part of the story, a huge part of the struggle, and the many hundreds, thousands, of lives that were sacrificed to get it, to be quite honest. Of the three cases that went to the Supreme Court, two of these plaintiffs died ([link removed]) waiting; Aimee Stephens died ([link removed]) just last month in May, waiting for this decision. She never got to see it.

JJ: Right. We don't want to erase that.

And just as with having to argue that Black Lives Matter, for Pete's sake, I have seen a few folks saying, “Of course I'm relieved, but how excited do you want me to get that, having had to litigate my humanity, I won?” But also, not to put too fine a point on it: There are still plenty of places and plenty of ways to discriminate, against trans people in particular.
Neil Gorsuch

Associate Justice Neil M. Gorsuch (photo: Franz Jantzen)

EY: Yeah. And we might, in the years to come, see inroads there. I know some people have critiqued Justice Gorsuch’s opinion as being kind of dry, because it is; it's not like an opinion by Justice Kennedy. Some people might remember Obergefell ([link removed]) , the big marriage equality decision in 2015. A lot of gay people, a lot of gay friends I know, when they got married after that decision, they read excerpts ([link removed]) from the opinion at their ceremony. It was flowery, it was beautiful, it talks ([link removed]) about equal dignity and those sorts of things. That's not Justice Gorsuch’s style, right?

But from a legal point of view, Justice Gorsuch’s opinion might be useful, trying to talk to other conservative judges, at the state and federal level, about how we read other laws. That you're literally not allowed to read transgender people out of protection just because you dislike them, or just because you're scared of transgender people. So in that way, it might prove particularly useful. But obviously, the struggle will keep going; there will be more cases, there will be pushback.

JJ: A question, a specific question that I know a lot of people have: What does this Supreme Court ruling mean for the HHS move ([link removed]) that came just in advance of it, that was eliminating protections against anti-trans discrimination, also, that against women seeking abortions, in healthcare. Does this ruling connect with that?

EY: Yes, I think it does. So the HHS regulation is basically based upon—not to get into the details of how the statutory regime works—but basically a very similar law that generally bans discrimination on the basis of sex. Under the Obama administration, there had been regulation in the healthcare context that basically said, “Whatever sex discrimination is in healthcare, it most definitely includes discrimination against transgender people trying to seek certain types of healthcare, as well as persons who have had abortions, who are discriminated against because they've had an abortion, because the experience of having had an abortion has a direct link to one’s sex.”

So it's very likely, based upon the Bostock decision—which is one of the first big decisions about what sex discrimination does and doesn't mean in a very long time, outside of the LGBT context—it's very likely, I think, based on Bostock, that the HHS regulations ([link removed]) which were released last Friday are just dead ([link removed]) in the water. It embraced a very, very cramped view of sex discrimination that Justice Gorsuch’s opinion just totally eviscerates. And Justice Alito’s dissent ([link removed]) about that sort of admits as much, saying that all these things in healthcare, and a variety of other areas... those limits no longer exist, they can't under Bostock.

JJ: The case that the court looked at does cover the workplace, and the workplace is only one arena in which we live, and we do want to be mindful of what writer Dorothee Benz calls ([link removed]) “Swiss Cheese Civil Rights”: You can be protected in one arena and then suddenly not. But the workplace is a huge place to start and does have, or could have, a bigger meaning, right, if it means, for example, that more trans people can get into the workforce. So this really—it really is big.

EY: It's really big, and beyond that, I would say if it were any other civil rights statute, I might agree with the possibility of the “Swiss Cheese Rights” problem, but Title VII in American law is tremendously important. The vast majority of federal and state courts, when they're interpreting federal or state laws about sex discrimination in any area of law, defer to how the Supreme Court reads Title VII, because Title VII is just sort of the end-all and be-all of what sex discrimination is. So it is more likely than not, in my opinion, that this reverberates throughout all sorts of sex discrimination laws, far beyond the workplace.

JJ: Finally, there are a couple of prevalent media frames that I've noticed, that... they're not wrong but I find them limiting. One is reading the Supreme Court’s ruling as a rebuke to the White House, which of course it is. But we know of course, it's bigger than just anti-Trumpism. It extends before him and beyond him.

And then there's the, you know, “It's a victory for liberals.” Like, OK, you won this round, people-who-believe-in-human-rights, but we’re coming back for you. And even the really well-meaning “It's a victory for LGBTQ people,” which, of course it is, and I know I sound like a language prig, but I just think, why not say, “A victory for fairness;” why not say “A victory for a healthier society”?

I'm just wondering what your thoughts are about the way media come at this set of issues generally; if there's anything you'd like to see more of, or less of? What about that piece of it?

EY: I think one line of messaging that is being missed right now—and it's perhaps the least sexy, pun intended, of what one can say—is, if nothing else, this is a victory for all of those things, but it's also a tremendous victory for textualism. It’s the school of statutory interpretation Justice Gorsuch and the late Justice Scalia led with. This is showing that textualism can allow progressive pro-LGBT outcomes to occur.

And I think we're going to see a divide on the conservative side about that, because for a long time, legal conservatives have been saying, “Well, of course, that's possible, it just so happens we never support those outcomes.” But this is a case that shows that maybe there's a way that conservatives and liberals, conservatives and progressives, can speak to each other sanely about the same issues, and come out to the same outcome, even if we speak about these issues differently.

I know some people, it bothers them that there's not a lot of dignity and, sort of, happiness from Justice Gorsuch’s opinion. I think at the end of the day for a lot of poor trans folks, poor gay folks, many folks who are people of color, too, who are just struggling, trying to make ends meet, that want jobs—they don't really care what the opinion says; they care that they have rights, and this is how they got it. And I think maybe it's just dark 2020 times right now, but that in itself, that's a gift, however we get it.

JJ: We've been speaking with civil rights attorney Ezra Young. You can follow his work at EzraYoung.com ([link removed]) . Thank you so much for joining us this week on CounterSpin, Ezra Young.

EY: Thank you so much.


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