For gay and transgender employees across America, the stakes in these cases could barely be higher
made at the Supreme Court on October 8th. The word “transgender” made its debut in an argument and the chief justice repeatedly used the pronoun “they” to describe an individual. Under discussion was Aimee Stephens, formerly Anthony Stephens, who had been fired from her job as a funeral director in Michigan after announcing she would start living as a woman.
The authors of the Civil Rights Act manifestly did not have gay and transgender workers in mind when they added “sex” to their list of banned grounds for discrimination. In 1964 gay sex was still illegal in most states and transgender Americans mostly kept quiet. But a textualist reading of Title—that is, one that focuses on the words of laws rather than the intent with which they were written—suggests that “sex” does indeed protect gay and transgender employees.
Yet the Supreme Court never rules without an eye to the wider politics of such cases. During the hearings on October 8th, Chief Justice John Roberts, who could cast a swing vote if the justices vote along ideological lines, said he was worried a ruling in favour of gay and trans employees would leave religious employers inadequately protected.
Transgender activists are often too quick to dismiss such fears. Responding to a question from Justice Sonia Sotomayor about how the law should respond to women who do not want to share bathrooms with people who look a lot like men, a lawyer for the American Civil Liberties Union, which is representing all three gay and trans plaintiffs, said this was not the question before the court. It could address it, he added, when it arose in a future case.
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