The Daily - ‘Because of Sex’

Episode Date: November 7, 2019

In 2013, Aimee Stephens watched her boss read a carefully worded letter.“I have felt imprisoned in a body that does not match my mind. And this has caused me great despair and loneliness,” she had written. “With the support of my loving wife, I have decided to become the person that my mind already is.”Ms. Stephens was fired after coming out as transgender. Now, she is the lead plaintiff in a Supreme Court case that will determine the employment rights of gay and transgender workers across the nation. Guests: Adam Liptak, who covers the Supreme Court for The New York Times, and Aimee Stephens, the lead plaintiff in the transgender discrimination case heard by the Supreme Court. For more information on today’s episode, visit nytimes.com/thedaily. Background reading: The forthcoming Supreme Court ruling hangs on justices’ interpretation of wording in the Civil Rights Act that prohibits employment discrimination “because of sex.”The case came to the Supreme Court from a federal appeals court, which found in favor of Ms. Stephens last year.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, the story behind the biggest Supreme Court case of the year. It's Thursday, November 7th. My name is Amy Stevens. I'm 58 years old, and I live in Redford, Michigan. Ever since I was a little kid, I've been fascinated with the funeral industry. I was hired in as a funeral director and embalmer. It was a chance to be able to comfort people in probably one of the worst times of their lives,

which was losing a loved one. And for me, it was a calling. It was my chance to be able to help people. And what about the particular funeral home where you worked? What would you describe as your relationship to it and the culture of it? I thought we had a pretty good relationship. I'd been there for over six years. I had some ideas about things they could do to improve the practices and stuff around the funeral home. They took those suggestions and ran with

them. In fact, I'd just gotten a rather substantial pay increase. So I kind of wasn't expecting this to go south the way it did. Amy, I wonder if you could read from the letter that you handed your boss. Sure. Dear friends and coworkers, I have known many of you for some time now, and I count you all as my friends. What I must tell you is very difficult for me and is taking all the courage I can muster. I am writing this both to inform you of a significant change in my life and to ask for your patience, understanding, and support, which I would treasure greatly. I have a gender identity disorder that I have struggled with my

entire life. I have managed to hide it very well all these years. It all started when I was about five years old. I knew something was different about me, but I could not have told you what it was then. I have been in therapy for nearly four years now, and I have been diagnosed as a transsexual. I have felt imprisoned in a body that does not match my mind, and this has caused me great despair and loneliness. With the support of my loving wife, I have decided to become the person that my mind already is. I cannot begin to describe the shame and suffering that I have lived with. Toward that end, I intend to have sex reassignment surgery. The first step I must take is to live and work full-time as a woman for one year. At the end of my vacation on August 26, 2013, I will return

to work as my true self, Amy Australia Stevens, in appropriate business attire. I realize that some of you may have trouble understanding this. In truth, I have had to live with it every day of my life, and even I do not fully understand it myself. I have tried hard all my life to please everyone around me to do the right thing and not rock the boat. As distressing as this is sure to be to my friends and some of my family, I need to do this for myself to end the agony in my soul. It is my wish that I can continue my work at RG and GR Harris Funeral Homes, doing what I have always done, which is my best. Doing what I have always done, which is my best.

That is a really powerful letter. It took a long time to write it. How long? Somewhere between six and eight months. Wow. All this started back in 2012 i had been living basically two lives one at home and in public and the other at work and i got to the point that i couldn't go on living two separate lives it was tearing me apart and i kind of had the feeling that if I couldn't go forward and I couldn't go backward, what was the point of going on at all? So in November

of 2012, I stood in the backyard with a gun to my chest for an hour. And in that hour, I came to realize that I really liked me and that I wanted to live. So I chose life. And in doing that, there was only one place to go and that was forward. So I started writing the letter. And then in July of 2013, I gave it to the boss. He didn't really have any reaction at all as he was reading the letter himself. I was kind of like pins and needles waiting for him to finish it. And then when he did finish it,

he folded it up and put it in his pocket and said, I'll have to think about it. And then two weeks later, he came back with his own letter, which was my letter of dismissal. So you had just been fired. Yes. And so what did you do? I went home on that Friday afternoon.

I talked to my wife, and it made me mad, mad enough to the point that on Monday morning, I went to the ACLU, and I talked to Mr. Jay Kaplan, and he put me in contact with the EEOC. So the Equal Opportunity Employment Commission, the federal agency. Correct. After I talked to the EEOC and they did their investigation, they asked me a question. And that question was, are you willing to see this through to the end? And I told them then that I was raised on a

farm, that I was used to hard work, and that I didn't give up so easily, and that yes, I would see this to the end, however long that took. I had in my mind what I needed to do, and it wasn't to really settle out of court. It wasn't to just give up and walk away. After all, this was not only happening to me, but to thousands of others. At that point, I knew I had to do something. And the only thing I knew to do

was basically to take it to court. And that's what you did. That's what I did. We'll be right back. Funeral director fired for being transgender is taking her years-long court battle to the next level. We want to turn now to that historic day at the Supreme Court. The Supreme Court is set to consider transgender rights for the first time. So it's October 8th, the second day of the Supreme Court term. I'm in the courtroom along with Amy.

Adam Liptak covers the Supreme Court for The Times. I'm sitting in the press box up by the bench, and... We'll hear argument next in case 18107, R.G. and G.R. Harris, Funeral Homes v. the Equal Employment Opportunity Commission. Chief Justice Roberts announces the case. Mr. Cole? Mr. Chief Justice, and may it please the court. David Cole, the legal director of the American Civil Liberties Union,

representing Amy Stevens, gets up to argue. And there's a charged sense in the courtroom. This is probably the biggest case of the year. And it turns out it's going to be a very hard-fought one. And Adam, what exactly is the question before the court in Amy Stevens' case? At bottom, it's a very simple question. It's, can an employer fire you based on your gender identity? We know that you can't be fired because of your religion, because of your sex, because of your race. But the question, which the court

has never addressed before, is can someone be fired based on their gender identity? And that same day, in a companion case, they're addressing the related question of, can someone be fired based on their gender identity? And that same day, in a companion case, they're addressing the related question of can someone be fired based on their sexual orientation? And all of these cases turn on how the court is going to interpret a particular law. And what law is that? The law is from 1964.

It's Title VII of the Civil Rights Act. And it says that private employers cannot discriminate based on race, religion, and sex. And the question for the justices is how do you read the phrase in the law, because of sex? You can't fire someone because of sex. What is the exact question about that word, sex? question about that word, sex. Well, nobody thinks that in 1964, when Congress enacted that law, the particular lawmakers thought they were addressing sexual orientation or gender identity. If you asked them, they'd probably say they were referring to what they would call biological sex and what other people might call sex assigned at birth. But nonetheless, the logic of the words,

Amy Stevens's lawyer David Cole says, and other lawyers say, is that in order to fire Amy Stevens, you have to take account of her sex. And therefore, this 1964 law squarely applies to her. So how exactly are the plaintiff's lawyers making this argument before the justices? Well, they use various hypotheticals. Imagine an employer who had six Amy's. before the justices. Well, they use various hypotheticals. Imagine an employer who had six Amy's.

David Cole gives an example of six Amy's, five of them assigned at birth, as one gender, one the other. And one says, I was assigned male at birth. And then he fires the one who says, I was assigned male at birth. Obviously, that person is fired because of her sex assigned at birth. That sure sounds like discrimination

because of sex. Similarly, in the sexual orientation setting, if a worker is a man and wants to date women and is left alone, but is a man and wants to date men and is fired, that sounds like discrimination because of sex. That's really interesting. The lawyer seems to be saying, Sounds like discrimination because of sex. That's really interesting. The lawyer seems to be saying, if you are assigned a sex at birth and you somehow don't live up to that assigned sex at birth, and something happens to you, you're fired from your job because of that expectation wasn't met, that's sex discrimination. That's right.

And that picks up a second strain of Supreme Court jurisprudence. They have said it's sex discrimination if you don't live up to a gender stereotype. And 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. That's a separate ground on which Amy Stevens can win and also a fairly powerful ground. And the lawyers in the sexual orientation case make a similar point, that a man who wants to date a man is not living up to some conventional

sex stereotypes, and therefore they're two on that separate ground they should win. And Adam, what's the counter-argument from the lawyers for the government who are on the other side of Amy Stevens and her lawyer? Well, there are two basic points. One is the nobody in 1964 was thinking this, so that's not what the law means. But the second is that these are distinct traits. Sex and gender identity, like sex and sexual orientation, are different traits. They're defined. They have different definitions. And it may well be that Congress should protect the second thing too, the government says, but it hasn't. There's a reason why when Congress wants to prohibit

discrimination based on the traits of sexual orientation and gender identity, it lists them separately. It doesn't define sex as including these traits. So as long as you treat men and women exactly the same, regardless of their sex, you're not discriminating against them because of their sex. So Adam, how do the justices respond to these dueling arguments? Well, some of them say it's up to Congress. May I ask you to respond to what some people will say about this court if we rule in your favor? And what they will say is that whether Title VII should prohibit discrimination on the basis of sexual orientation is a big policy issue, and it is a different policy issue from the one that Congress thought it was addressing in 1964,

and Congress has been asked repeatedly in the years since 1964 to address this question. since 1964 to address this question. The Equality Act is before Congress right now. Congress has declined or failed to act on these requests. And if the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature. It may well be a good idea for Congress to protect gay people and transgender people, but they didn't do it in 1964. It's not our job to do it. And people will lose faith in the court if they think we're acting as legislators, not judges. Mr. Coe, let's not avoid the difficult issue, okay? The second thing that was going on at the argument was barely legal.

It was more cultural. There was a lot of talk about the supposed social upheaval that would follow by a ruling in particular in favor of Amy Stevens. There was a lot of talk about sports teams and dress codes and especially and endlessly about restrooms. And they want to use the woman'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? They wanted to know, basically, if a ruling in favor of Amy Stevens would result in a free-for-all in the nation's bathrooms and whether that's going to cause the world to go berserk. Does that argument hold up when you get to specific work requirements? In other words, if the objection of a transgender man transitioning to woman is that he should be allowed to use, he or she should be allowed to use the women's bathroom. Now, how do you analyze that? Is that something that this ruling would

actually impact? It's a question not presented in any of the cases. It's a wholly separate question. It's a question that one day they may have to decide. But the fixation on restrooms was really extraordinary. So why are the justices, and it feels like both from the left and the right, fixated on this? Well, I guess it's the case that lots of people are made deeply uncomfortable by the idea that they would have to share a restroom with someone they perceive to be of the opposite sex. And I guess those are deeply ingrained cultural norms. And people on both sides of the ideological aisle on the court really were troubled by and were trying to figure out how to deal with the question that not in this case, but in some future case,

they might have to decide whether not letting a transgender person use a bathroom is the kind of adverse employment action that could give rise to a lawsuit. So Adam, what do you make of these questions and these reactions from the justices at this point in the hearing? What does it tell you about their thinking? So I walk into this argument thinking what I usually think, that typically the five Republican appointees, the five conservatives are going to be on one side ruling against the gay and transgender people and the four Democratic appointees, the four liberals on the other side. That's your going in proposition, not an unreasonable place to start. But some things got scrambled. There are questions from the left side of the court,

deeply skeptical of what will happen to the nation's bathrooms. And there are questions from the right side of the court, which seem very sympathetic to the argument that, listen, the words mean what they mean, and it's our job to interpret the words, and they may well protect gay people and transgender people. And the person who really captures this best is one of the court's ordinarily most conservative members, but sometimes a bit of a wild card, Neil Gorsuch, President Trump's first appointee, who is an avowed textualist, who really cares about the words and looking at the words in isolation. And he just about says, listen, when a case is really close, really close on the textual evidence, and I assume for the moment, I'm with you on the textual evidence is close. Okay. We're not you on the textual evidence. It's close, okay?

We're not talking about extra textual stuff. We're talking about the text. It's close. A judge finds it very close. If that were the only question in the case, the words seem to protect these people. The 1964 Title VII word, sex. Yes. That because of sex does seem to apply. And then he pauses for a beat and says, at the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision? But what about the social upheaval that would result? Which, by the way, is not a particularly legitimate question for courts to take account of if their job is to interpret the law. Congress makes the law, and the consequences of the law are for Congress to worry about,

not courts. So I walk out thinking, what do you know? The four liberal votes are probably locked in. In favor of an Amy Stevens. Yes. But Amy Stevens needs a fifth vote to win. Who's that fifth vote? It might well be Neil Gorsuch. I mean, we will find out for a few months, and it may be yet another 5-4 case along the usual lines. But it did seem that Gorsuch in particular was really struggling with his intuition that the words mean what the plaintiffs, what Amy Stevens, say they mean. It feels like the central tension here is not about whether the text of the 1964 law applies to Amy Stevens. It sounds like in many cases they think it does. The tension here seems to be around these justices' fears of some kind of practical consequence

that they're not even sure will happen if they agree with Amy Stevens' lawyers. Exactly right. It's usually the conservatives who say, all we care about is the text. We don't care about intent. We don't care about purpose. We don't care about consequences. We're going to drill down and look at the semicolons and figure out what the text means. And it's usually the left side of the court. It says, no, we take account of legislative history and conference reports and floor reports, and we try to figure out what Congress meant to do. And here they kind of flip sides. And a little more broadly, I think the court has basically reconciled itself to the fact that they made four major gay rights decisions and that gay people ought to be

protected. But it's a new frontier to talk about transgender people. And these two cases arrive at the court at the same time, and there's this feeling that they have to rise or fall together. But there's a disconnect. The transgender case really does sound like because of sex. The sexual orientation case is a little further away from because of sex. But culturally, the court seems okay with protecting gay people, but still a little uncomfortable with this concept which seems new to some of the justices,

that there are people in the world who are transgender. So there's a mix of things that are a consequence of the fact that they're hearing the two cases together. So Adam, knowing everything you know about this court, having sat through all this, what do you think is going to happen in this case? It's an uphill fight for Amy Stevens. The five more conservative members of the court are likely to rule in lockstep against her. She's got some shot at picking up one of those votes. If she picks up one vote, she wins. Walking out of the courtroom, I thought it was

a little closer than you might have thought. But if you had to put money on it, this is, in this kind of big culture wars kind of case, a 5-4 conservative court. Which would mean that in the case of a judge like Gorsuch, if he joins the conservatives against Amy Stevens, he will have been prioritizing these fears of societal upheaval that he thinks would result over perhaps the kind of straight, legal, textual arguments. If you take him at his word,

and of course at arguments people are musing and offering up devil's advocate ideas, but yes, if you look at what he said at argument, what you say is right. Thank you, Adam. Thank you, Michael. So, Amy, it's been seven years, correct, since you were fired from the funeral home? Pretty close.

I wonder if you have had any interactions with your boss there. He's on the other side of this case. I'm sure he's tracking it just as closely as you are. I haven't spoken to him since I left. I did keep in contact with some of my close friends at work, but the ones that were closest to me have since passed on. So I really don't have anything to do with the funeral home at all nowadays. I have been there for visitations of friends and things that have died and passed on.

You've been there for funerals? Yes. That must be a strange experience. It makes me wonder if they even knew who I was. What do you mean? Well, we used to go eat at a particular Chinese restaurant when I was presenting as male. And we were in there eating one weekend. And the manager of the place asked my wife, he says, where's your husband?

And she turned around and she looked at me and she says, he is now a she. And she said, we're very happy together. And you could have drove a freight train in his mouth because his jaw dropped. He couldn't believe what he was seeing. I've had people from the church we used to attend who have stood in front of me in a restaurant and had no clue as to who I was. So I'm happy at the point where I'm at, and I'm sorry that they don't understand that,

but to me, life was more important than dying. I am happy being me. I don't think there's anything else I'd rather be except me, and it would be nice to be able to work a job that I truly loved, that I was good at. But I was kind of denied that chance, and that's where we are now. Well, Amy, I'm really grateful for your time.

I'm glad to have met you, and I wish you the best. Thank you very much. We'll be right back. Here's what else you need to know today. I want to let you know, as you may know already, that we will begin our open hearings in the impeachment inquiry next week. We will be beginning with the testimony of Ambassador Taylor and Ambassador Kent. On Wednesday, House impeachment investigators said that the public phase of their inquiry would begin next week with televised testimony from three senior officials from the State Department who will lay out their case against President Trump. And I think you will see

throughout the course of the testimony, not only their testimony, but many others, the most important facts are largely not contested. All three officials said they either witnessed or were victims of the president's campaign to pressure Ukraine to investigate the president's rivals, including Marie Yovanovitch, the former ambassador to Ukraine, who was fired after Trump and his allies concluded that she was an obstacle to their plan. We are getting an increasing appreciation for just what took place during the course of the last year and the degree to which the president enlisted whole departments of government in the illicit aim of trying to get Ukraine to dig up dirt on a political opponent. And in Kentucky, Republican Governor Matt Bevin

has formally requested a recount of votes from Tuesday's election, in which he lost to his Democratic rival, Andy Beshear, by about 5,000 votes. We simply want to ensure that there is integrity in the process. We owe this to the people of Kentucky. The election was a closely watched test of the politics of impeachment, with Bevin, an unpopular incumbent, aligning himself with President Trump and claiming that Bashir represented the forces threatening the president. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.