Hi everyone! I’m back with another update in law and entertainment.
On October 8th the Supreme Court addressed whether a Title VII prohibits discrimination against transgender employee Aimee Stephens.
Here’s the rundown: Aimee Stephens was fired from her position at Harris Funeral Homes, Inc. because of her transition from male to female. Title VII prohibits discrimination “on the basis of sex.” It is now up to the Supreme Court to decide whether the word “sex” in the statute was intended to cover transgender individuals.
David Cole, attorney on behalf Aimee Stephens, argued Stephens was discriminated against on the basis of sex for three reasons. The employer terminated Stephens for failing to conform to the owner’s explicit stereotypes about how men and women behave. Moreover, Cole argued Stephens was fired strictly because she changed her sex and identified contrary to the sex she was assigned at birth. Anticipating questions from the justices, Cole articulates that “none of these arguments ask the Court to redefine or, in Judge Posner’s words, update sex.” Rather, “ sex means at a minimum sex assigned at birth based on visible anatomy of biological sex.”
Chief Justice Roberts’ question persisted throughout the argument. He asks how courts should analyze these policies. Should justices analyze Title VII examining individuals of transgender status or “do you analyze it on the basis of biological sex?”
Cole quickly responds to Chief Justice Roberts asserting the argument rests on biological sex, or to be more accurate, the sex assigned at birth. Still, failing to answer the root of Chief Justice Roberts’ questions, the other justices join to provide clarification. Justice Sotomayor asked, “if a transgender person wanted to use the women’s bathroom . . . but other women were uncomfortable, what law guides judges in balancing these scenarios?” This question addressed possible mass social upheaval that may result from this decision.
Cole advocates for his client using his strongest argument, “At the end of the day, the objection to someone for being transgender is the ultimate sex stereotype. It is saying, I object to you because you fail to conform to this stereotype: the stereotype that if you are assigned a male sex at birth, you must live and identify for your entire life as a man. That is a true generalization for most of us, but it is not true for 1.5 million transgender Americans. To say we’re going to fire you because you fail to accord to a generalization about how people who are assigned a particular sex based on visible anatomy at birth have to live for the rest of their lives is sex discrimination.”
Cole continues when he presents another example. “If an employer wanted to know an employee’s gender he or she were assigned to at birth and fired any employee that failed to conform to their assigned sex at birth, this is discrimination on the basis of biological sex.” Still, Justice Kagan recognizes the ultimate dispute among the parties: whether Stephens was fired for violating the dress code or because of her status as a transgender woman. Justice Gorsuch joins the conversation asking whether Cole’s argument is one of judicial or legislative response. Cole asserts that this question is not an issue of policy but judicial review.
John Bursch, an attorney arguing on behalf of the Harris Funeral Homes, Inc., disagrees. He argued that sex and transgender status are two independent concepts. Bursch’s begins his arguments in a rapid-fire fashion. However, Justice Breyer interrupts what he calls, “the parade of horrible argument” with some insight.
As Justice Breyer informs Bursch that the question in this case is not whether an employee is contrary to an employers Bona Fide Occupational Qualifications (BFOQs) or whether comparative harm exists when sex specific policies are implemented. Rather, Justice Breyer tells Bursch that the only question in this case is whether this case is discrimination on the basis of sex, outlined in Title VII. Forced to redirect his reasoning, Bursch attempts to dismantle the other side’s argument asserting that Cole’s comparison of a transgender employee to a non-transgender employee applies a different classification to the Title VII statue that Congress had not added.
Under the questioning of the justices, Bursch stumbles to build an argument. However, he returns to the core, stating that sexual orientation and gender do not fit under the 1964 statutory language of Title VII. He further explained that if the federal courts were to “redefine the meaning of sex in federal law… it would allow biological men to identify as women and take on women’s place in sports teams.” Withstanding active questioning Bursch is able to conclude his argument in a timely manner.
In rebuttal Cole re-emphasizes that the power of this decision lies judicial review rather than legislative redrafting. This argument highlights that interpretation of “sex” has a delicate balance. The justices appear inquisitive yet divided. However, this argument reveals that the justices will make an honorable attempt to abide by text of Title VII.
This case is sure to transform the way courts interpret gender and its application in discrimination cases. I can’t help but think about how this would impact the entertainment industry particularly when it comes to casting calls requesting women and men of certain ages.
Surely this will be a ground breaking decision and please feel free to share your thoughts.
Until next time, “be well, do good work, and keep in touch.” -Garrison Keillor