The Supreme Court was tasked with making an incredibly important decision about whether LGBTQ job discrimination is legal on Tuesday. They heard arguments for three cases of alleged discrimination against gay and trans employees. Unfortunately, some of the arguments got seriously sidetracked by an old debate about trans people and bathrooms.
Only one of the three cases concerns trans rights specifically. It centers Aimee Stephens, who was fired after she came out as transgender and wore women’s clothing to work. Like the other two plaintiffs, Stephens claims that her firing violates Title VII of the Civil Rights Act, which bans sex discrimination. The success of the plaintiffs’ legal arguments hinges on whether “sex” can be interpreted to apply to sexual orientation and gender identity — and the Supreme Court’s justices are unsure that it does.
The head of Stephens’ legal team, David Cole of the ACLU, made a skillful and sound legal argument, only for Chief Justice John Roberts to immediately bring up the bathroom question.
“If the objection of a transgender man transitioning to [a] 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?” Roberts inquired, per NewNowNext.
Cole tried to politely point out that bathrooms don’t have anything to do with the actual case at hand. He said, “How you answer this case will not resolve how you answer that case.”
But even liberal justices were hung up on the matter. Justice Sonia Sotomayor pushed Cole to answer the bathroom question, suggesting that single-sex bathrooms could be a possible solution. Justice Neil Gorsuch, whose vote may swing the court’s decision, pointed out the “massive social upheaval” that could be caused if the court ruled in favor of trans employees.
Finally, Cole had the perfect response. He drew attention to the presence of two trans male lawyers on Stephens’ legal team in the courtroom.
“There are transgender male lawyers in this courtroom following the male dress code and going to the men’s room,” Cole said. “The Court’s dress code and sex-segregated restrooms have not fallen. So the notion that somehow this is going to be a huge upheaval, we haven’t seen that upheaval for 20 years, there’s no reason you—you would see that upheaval.”
All of the cases deal with job discrimination, not public accommodations. They don’t concern bathroom access whatsoever.
The justices’ reactions to Stephens’ case show just how far they have to go to truly understand trans and queer issues.