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Trump's fight to make transgender discrimination legal may make all sex discrimination legal again

In a new Supreme Court filing, the administration argued that using gendered stereotypes as a basis for hiring or firing should be legal.
Aimee Stephens
Aimee Stephens was fired after she told her boss that she is transgender. Her case is now before the Supreme Court.Charles William Kelly / ACLU
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By Chase Strangio, trans activist and staff attorney, ACLU

As a measure of how far the Trump administration is willing to go to make sure that transgender people have no protection from discrimination under federal law, take just one small section of their brief filed with the Supreme Court on Friday: “Sex stereotyping by itself is not a Title VII violation.”

In other words, Trump’s lawyers are arguing that the section of the Civil Rights Act that prohibits employers from discriminating because of sex does not prohibit employers from discriminating on the basis of stereotypes related to sex. That is a wholesale rejection of major Supreme Court precedent and invites the court to wipe out protections that people have relied on for decades. And a ruling in their favor could drastically change workplace protections for all women — whether or not they are LGBTQ — and anyone who does not conform to the administration’s preferred gender norms. That could include men with long hair and women with short hair; men who are primary caretakers of children or parents; women who wear pants; and women who work outside the home or are primary breadwinners.

It is almost as if the Trump administration is arguing that if trans people might get protected from employment discrimination, then it is best that there be no protections for anyone. Which, actually, may be their endgame.

But let’s back up to where this case started.

More than five years ago, Aimee Stephens was fired from her job in Michigan when she informed her employer that she is transgender and would no longer hide that core part of her existence. After she was fired, the Equal Employment Opportunity Commission sued her employer for violating federal law. Now her case — along with two cases involving men who were fired for being gay — is before the Supreme Court.

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The question presented in Aimee’s’ case is relatively straightforward: Is it unlawful sex discrimination under Title VII of the Civil Rights Act to fire someone because that person is transgender? Before the 2016 presidential election, the government had nearly universally said yes.

But, as of Friday, the United States — which initially brought the case through the EEOC — has officially switched sides: The Trump administration has weighed in to encourage the court to permit employers to fire an employee for being trans.

The justices will ultimately decide whether, when an employee is fired because their employer doesn’t like either how they present their sex or the sex of the individuals to whom they are attracted, it is “because of sex,” which is illegal.

In the most straightforward reading, it is difficult to see how firing someone for changing sex, not performing their assigned sex correctly (in the employer’s view) or for being transgender isn’t firing them “because of sex.” But sometimes logic and textual reasoning don’t win the day, and good old-fashioned reverse-engineered political outcomes do.

If the court sides with Trump administration and the employers in these case, and thus holds that it is presently lawful to fire LGBTQ people, it will be setting our legal system on a dangerous path that could lead to myriad unexpected harms.

First, it will be making it clear to employers across the country that they can go ahead and fire people simply for being LGBTQ. This would directly lead to catastrophic outcomes for many people, including loss of jobs and wages, health care and escalating despair and alienation. It would also validate (and potentially make legal) discrimination in a host of other contexts including in education, health care, housing, the military, prisons and by government officials.

This seems to be the precise intention of the Trump administration, which has been systemically attacking LGBTQ people — and particularly trans people — since the first weeks after inauguration in January of 2017 when it rescinded guidance clarifying federal protections for transgender students. A few months later, President Donald Trump tweeted his ban on transgender people serving openly in the military, which is now in effect. In the past few months, the administration has proposed excluding transgender people from protections in health care, accessing homeless shelters and now, upping the game, defending the lawfulness of firing transgender workers before the Supreme Court alongside the Alliance Defending Freedom.

Aimee’s employer, represented by the ADF, is not only arguing that it was lawful to fire her but that it was in her best interests. The lead ADF lawyer for her employer, John Bursch, explained in an interview that he believes “it’s healthier for people such as Stephens to try to ‘align their mind with their biological reality’ rather than to ‘change their gender.’” For this reason, he contends, Aimee’s employer wasn’t acting out of discriminatory animus, but rather “‘out of love both for Stephens and for employees.’”

They drove this point home in their brief before the court, arguing: “The science regarding gender identity is far from settled, and there are deep disagreements over whether otherwise healthy bodies should be physically modified to align with the mind. The opposite approach — aligning one’s mind with the body — has traditionally been the preferred method for treating other dysphorias, such as anorexia and xenomelia.”

However, the American Medical Association, the American Psychiatric Association, the American Psychological Association and pretty much every other major medical and mental health group has weighed in on the side of Aimee and made it clear that the exact opposite is true. So the ADF is left citing for support an 88-year-old physician whose colleagues have wholly and publicly disavowed his views on trans people.

But as cruel and insidious as their line of reasoning is toward Aimee and other trans people, the reach of what the administration has advocated before the court — that sex stereotypes are not discriminatory — will, if accepted by the court, also affect all workers who don’t conform to traditional gender norms.

And that is why, while the immediate target here may be LGBTQ people, the effects will be felt much more broadly if the Trump administration is successful. For people who aren’t yet paying attention, perhaps it is time to mark Oct. 8 — the day the Supreme Court will hear oral arguments in these cases — on the calendar. Firing someone for being trans might sound OK to you (though it shouldn’t), but you could be next under rules that are being made while people are looking the other way.