WE WON ONE!

Jillian T Weiss comes back to talk to us about what the latest SCOTUS decision means and doesn’t mean

Follow Gillian Brastetter for more on the utter failure of the mainstream media to highlight trans voices in their media coverage of the SCOTUS decision. Her thread is here.

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A full transcript of the episode is below:

Callie: [00:00:00] Shout out to Becky for a pledge increase this week on Patreon. Thank you, friend. Love you. Lots. My name is Callie Wright and this is Queersplaining. So I know I said we’d be back to storytelling this week, but some really important shit is still going down. And I think it’s really important that we talk about it.

It already feels like a month. Since last week’s episode. And so fucking much has happened. as I write and record this it’s Tuesday and yesterday, the Supreme court decided a super consequential, queer and trans rights case. You might remember a few months back. I talked with Jillian T Weiss about this.

She’s a lawyer who specializes in employment discrimination cases. Before we talk about the decision SCOTUS made on Monday, let’s do a quick recap of what these cases were about. 

So basically we had three cases packaged together and argued at the same time. The first is Harris Funeral Homes V Equal Opportunity Employment Commission.

Amy Stevens was a transgender woman who was fired for being transgender. We know this unambiguously. She wrote a letter to her employer talking about what it meant to be transgender said that she was trans and that she intended to return to work as her true self. And her boss said, cool, I’ll get back to you.

And then a few weeks later, he fired her. He tried to defend his decision with his religious convictions. That argument was rejected outright. And it worked its way up to land at the Supreme court. Interesting to note, they chose not to bring up the religious thing and their argument to the Supreme court, which is something they might end up regretting.

The second case was Altitude Express V Zarda. Don Zarda was a skydiving instructor. He was fired by his employer after revealing his sexual orientation to a customer. He was trying to make a woman feel better about doing a tandem jump with him by telling her that he was gay to make her more comfortable.

The woman told her boyfriend who complained to the employer and he was fired. The third case was Bostok V Clayton County, Georgia. Gerald Bostok was working as a child welfare services coordinator. He started participating in a recreational gay softball league and was soon fired for quote unquote conduct unbecoming a County employee.

The question in all three of these cases is very simple. Does title seven of the civil rights act, protect employees from discrimination based on gender identity or sexual orientation and the very clear message from Monday’s decision is that yes. In fact, it does. You might remember when I made that first episode, I said that Jillian would be back to talk about the arguments when they happened.

And then ultimately the decision, the episode talking about the arguments didn’t end up happening. And I can now tell you the reason it didn’t happen was that Jillian was worried. 

Jillian: [00:02:48] I was very concerned about the argument because. There were questions posed during the oral argument about what do we do about bathrooms and what do we do about these different situations, dressing rooms and so on.

And the answer given by the advocate on behalf of the ACLU, David Cole was, that’s not the case before us. You know, there’s, there’s many things we could say about that, but essentially we’re not being asked to decide that today. So it’s not something that we really should decide and he stuck to those guns.

And I, along with some other advocates were quite concerned that what that meant, particularly in light of a comment by a justice Gorsuch, that it would cause tremendous cultural upheaval to make such a ruling. You know, what I was concerned about is that not having been given an answer, and I think, you know, many different answers could have been given.

But not having been given an answer, then they would feel free to use that as a reason not to rule in the plaintiff’s favor, but that shows why I was not arguing in front of the Supreme court and he was. Because ultimately he was exactly right in making the case that this is simple, not complicated. There’s not a lot of things to think about here.

Is it sex or is it not sex? — to push these determinations and, you know, ultimately Justice Gorsuch was the perfect person to write that opinion because I think anybody else would have made it a lot more complicated. And he he’s criticized bitterly by Justice Alito for being so simple. He’s called a literalist.

It said that he is  piloting a pirate ship because it’s under the flag of textualism, this conservative judicial philosophy that. You know, understand words in certain ways, but really what he’s doing is, you know, making his own decision instead of Congress. So. No, these, some of these conservative justices, and I’m sure many conservatives tonight are very angry with Justice Gorsuch, but ultimately that’s the decision that he adopted that this is really simple.

Yeah. There’s all these other things that we think about and what do we do and better it up. But that’s not my job. My job as a Justice on the Supreme Court is to decide what is the law. This is what it says. And whatever the consequences are, not my problem. 

Callie: [00:05:15] So if not, if not ideologically, we can at least be thankful that he was a logically consistent in his philosophy within this case.

Jillian: [00:05:24] Well, yes, and I have to say that that’s what I’ve always thought. And I wrote, by law review article on this topic, I don’t know, 13 years ago saying that this is exactly what the result would be in the Supreme Court. I didn’t get it completely right because I made an argument that said that sex as a term was ambiguous because of all the changes that have occurred.

And so therefore we have to interpret it, you know, in certain ways. And basically what he said is it’s not ambiguous. There’s no ambiguity involved. So therefore the legislative history of what legislators thought in 1964 is totally irrelevant. We only use that kind of legislative intent and history when a word is ambiguous, since this is not ambiguous, we don’t need all that stuff. It doesn’t matter what they thought in 1964. And you know, when you fire someone because they’re gay, it is because of their sex period and the discussion. There’s no need for an interpretation. 

Callie: [00:06:22] I know you’ve been, picking apart the, the decisions.

So what, talk to me about what the decision specifically says. Cause we had talked about a couple of different ways. It could go like on a spectrum of like good and bad. And so kind of talk to me about where the decision actually falls on that spectrum and like what, what it exactly it says.

Jillian: [00:06:39] Well, I think it falls on the very good part of the spectrum.

What it basically says is that when you discriminate against people because of being gay or transgender, you are discriminating against them based on sex. And it’s very interesting because a number of courts had previously said that sex stereotyping is not permitted. And so therefore, if you discriminated against a transgender person, you are stereotyping their sex.

You’re saying a man. Shouldn’t look this way or women shouldn’t look this way or what I consider a man or a woman shouldn’t look this way. And a lot of people had concerns about that because it’s so am I being judged as a, you think I’m a man, so you’re, therefore you’re judging me based on me being what you think I should.

It got confusing. And there was a case in the District of Columbia in 2008 that said, no, no, no, no. We’re not going to do it that way. We’re just going to say that if you discriminate against someone, because they’re transgender, that is sex discrimination. And, you know, that was a decision. A lot of people liked, but it was a lower court decision.

And there’s not a lot of courts that have ruled in that particular way. The sixth circuit did do it in this case. the Stevens case. But, you know, what the Supreme court was going to do with all that was really quite a different ball game. And it’s very interesting that justice Gorsuch, who is not only what we might call a textualist, but also practically a literalist.

It’s very interesting what he did with this decision. And so it, it really inline with that type of ruling where we’re saying it’s per se sex discrimination to discriminate based on being trans or gay. It’s not a form of stereotyping. It’s not, you know, something like it, it is just straight on full, you know, full speed ahead.

Sex discrimination. No kidding. So that’s startling. 

Callie: [00:08:51] Yeah. And, and what are the implications of that? 

Jillian: [00:08:54] Well, so my mind, and you’re currently to justice Alito who was highly disturbed by this ruling. It means in every statute where it says, sex it now means that you cannot take into consideration, whether someone is gay or transgender.

Callie: [00:09:10] There’s been a lot of talk about this new rule that would strip protections in healthcare from trans folks under the affordable care act. So does this mean that rule is now nullified or probably will be? 

Jillian: [00:09:22] I think probably will be, you know, we’re dealing with a very willful administration, which is not unknown by the way, you know, president Reagan had a program, he called non acquiescence. And what it basically meant was that they were going to ignore all court rulings except for Supreme court rulings. And they were just going to do whatever they wanted except in that particular courts jurisdiction. So, you know, this is not new and I, I’m pretty sure that the current administration will look to justify their rule saying that sex does not cover transgender people, but I don’t know how they do it. Given the breadth of this decision. You know, obviously they’re going to look for some way to distinguish healthcare from employment. but I think it’s going to be tough. They may hold it up for quite a while. I mean, it might take a while to go to court and knock that down and go through the whole process and so on.

But, you know, they’re just making us go through an exercise. It doesn’t mean that they’re going to. Be even close to winning that argument. 

Callie: [00:10:25] So basically it, maybe it feels like they’re trying to make the victory as difficult as it possibly can be. 

Jillian: [00:10:31] Well, we don’t know that for certain yet. I haven’t heard anything about what they’re doing with the HHS role.

Like this is all too new to really understand exactly what’s going on. But my guess is that that’s probably what’s going to happen. 

Callie: [00:10:45] And talk to me about, at the very end of the opinion, there is a piece where they talk about, religious exemptions. Talk to me about that. 

Jillian: [00:10:58] Well, at the end, of Gorsuch’s opinion, he says, you know, look, there may be issues with regard to religious freedom, but that’s not the case before us right now.

We’re not talking about someone’s belief regarding. I don’t know, bathrooms or whatever, we’re just. The question is, can you fire someone because they’re gay or trans and say that it’s not sex discrimination. And the answer to that is, you know, how this might interact with someone’s religious freedom is a question for another day.

And he noted that the sixth circuit in a ruling on the case of Aimee Steven, specifically ruled on the religious freedom restoration act, which is an act that. You know, provides greater religious freedom to people to be free from government rules and regulations like Title VII and the sixth circuit said, no, that does not apply here.

and so justice Gorsuch was recognizing that this is an issue that a lot of conservatives want to bring up and he’s a conservative, and he’s very concerned about religious freedom. But ultimately he was decided one case today and all of these other issues that people were bringing up, what’s going to happen with this, that, and the other thing he said, you know, that’s not something I can really decide today.

What I’m called upon to decide is what does this word mean? And I’ve written, you know, 35 pages on what the word means. You’re telling me you have some policy considerations. You want me to take into account because what’s going to happen with this and that. And his answer is, I don’t know what’s going to happen with that. When the time comes, when we’ve got a case, when we can, you know, look at all the facts of that case and see what’s going to happen, then we’ll deal with that.

And not today. 

Callie: [00:12:41] Yeah. And I know obviously speculation is difficult, but I wonder if this might lead to a situation where like, like if you work for the government or you work for like a big corporation or something like that, then you’re covered. But you know, you work for a mom and pop restaurant down the street.

Who, you know, their like religious beliefs or their whole thing, and they decide that they want to discriminate. Like, can you imagine a situation in where there’s like a, like a different standard for folks like that between like big companies or like privately held like closer held companies?

Jillian: [00:13:18] Absolutely because, the federal law only applies to employers of, at least 15 employees. So if you’re working at an employer with less than that number of employees, then this federal civil rights act does not apply to them. 

Callie: [00:13:35] I didn’t know that. 

Jillian: [00:13:36] Cause then it’s gonna come down to your state laws. And potentially local laws.

And, you know, if you’re in a state like New York, for example, that already has a law protecting you from discrimination based on sexual orientation or gender identity, then you’re good. Or at least you’re supposed to be protected. But if you’re in a state like Mississippi or Georgia, that doesn’t have those kinds of laws, then, you know, you’re, you may be in a more difficult situation.

Callie: [00:14:06] Are you aware of any cases working their way through the courts? Now that could and end up with us pointed in a direction about the religious exemptions? 

Jillian: [00:14:15] I don’t know of a specific case at the moment. 

Callie: [00:14:18] You know, I’m thinking about. Cause we had mentioned RIFRA and how that was part of what the argument was.

I’m sure this is probably just like a legal question that I don’t understand. So if I’m remembering right. RIFRA was part of the argument that Harris Funeral Homes made. And, and I remember that argument being rejected by the lower court. And I’m curious, like, was that not an argument they used at the Supreme Court?

Is that why they said they couldn’t make a, they couldn’t make that call based on RIFRA? 

Jillian: [00:14:52] Yes. It was not brought up to the Supreme Court as a point of appeal. You have to let the court know exactly what it is you’re appealing. And they decided not to bring that question to the court. And I could speculate as to why. It probably has something to do with the fact that it’s a complicated analysis and they figured they had a winner with this one.

Callie: [00:15:11] Yeah. So obviously these cases, you know, were, were centered around, people being fired for being gay people being fired for being trans. I imagine I know what the answer to this question is, but I want to hear it from you to make sure that my thinking is correct, like bisexual pansexual people whose orientations aren’t binary are not specifically named in this.

I’m guessing that. You know, but because it’s, if sexual orientation as a class is protected, then any sexual orientation other than heterosexual would be protected, not just specifically gay people. Right. 

Jillian: [00:15:43] Well, that’s true. and you know, how you define sexual orientation is really not all that settled. I mean, it’s often defined as.

Heterosexuality homosexuality or bisexuality, but you know, there’s a lot of play in those terms and, you know, terms change and our social reality changes. So my feeling is if you can fit the case into any of those issues, or if you could make the case as this had something to do with gender roles, of some type you’re going to be able to make the case  that sex was involved in the decision. I don’t, I don’t know that it has to necessarily fit these categories that were stated in the decision in order to be, afforded relief. 

Callie: [00:16:29] What, what’s next? Cause, I mean, I feel like this is, I mean, this is obviously huge, right? but I don’t think any one decision is going to be the end of things.

What’s what’s the next thing that you see going this way? 

Jillian: [00:16:44] Well, I think we’re going to have to parse out what this means in different situation. You know, it’s one thing to say that sex, includes, decisions that are made on the basis of sexual orientation or gender identity. It’s another thing to understand how this plays out in the many, many, many different situations that occur in the context of employment in the context of society and the context of government benefits, the context of prison and the context of, you know, so many different things that involve determinations regarding sex.

So how that’s gonna play out is a very complicated mess. And that’s why we have the system. We have a system of precedent where we look to prior cases and attempt to use them to understand how the current situation should be determined. And it provides a very flexible mechanism for, you know, using a, a principal, like the one that has been applied today.

To deal with different situations because we, it doesn’t apply the same in all situations. And it’s impossible for any one person to think about how’s this going to be applied in every single situation? I don’t know. 

Callie: [00:17:56] Yeah. 

Jillian: [00:17:56] But have to be there to try to steer it. 

Callie: [00:17:59] Yeah. Heck yeah. yeah. So last question.

About this that I can, that I can think of is there are, I’ve seen a lot of people talk about the idea that like anti-discrimination protections are great, but obviously it’s not a panacea, right. Because people can be sneaky about, you know, not being explicit and their, discrimination and making things hard in other ways.

And like, I myself was kind of like forced into quitting a job over being trans. And so like, I don’t think anything like this would have actually been able to stop that from happening. and of course, I think any reasonable person understands that like, no, like single law or Supreme court decision is going to fix all of our problems in this area.

But I’m curious if, if you have thoughts about like what sorts of practical protection does this actually confer to folks? 

Jillian: [00:18:52] Well, I think it removes one major barrier. To understanding a particular situation. We no longer have to spend a lot of time thinking about whether or not discriminating against someone because they’re trans or gay is an issue.

And that removal of uncertainty, I think will make cases a lot easier to parse. I think we’ll make it a lot easier to find a lawyer. First of all, this is going to raise the profile of this incredibly. People have not been focused on this at all. No, they have no idea what this means. Most people thought that there were already protections for transgender and gay people on the federal level.

So, you know, this is, people are gonna be talking about this for quite awhile and a lot more people who didn’t think they were going to, that they were protected. Now we’ll realize that they are. Lawyers who do employment cases. We’ll now be interested to learn more about this particular area and to take such cases.

So I think it’s going to create a lot of avenues for relief. And as you said, you know, it’s not simple. you know, why did an employer take a particular course of action? You know, I have to spend a lot of my time, in law practice trying to figure out, you know, why did, how can we make the case that they did this. because the person is trans, you know, they, they often come up with another reason. Oh, you didn’t wear your safety vest. Okay. Well, you know, did you fire anyone else? Because they didn’t wear their safety vests. Oh, well we didn’t know that they weren’t wearing the safety. So you get all these different kinds of situations and they’re really the importance of this is it’s just going to remove one area of major uncertainty and.

The bias will go under underground, but that’s why you go to law school and spent 35 years practicing law. You can help people figure that out. 

Callie: [00:20:43] So yeah, this is a pretty big fucking deal, but like any law being passed or any court decision, it is not. The end of the fight. Of course, I’m not someone who thinks our existing legal systems are going to be the things that save us anyways.

They were literally created to keep people like us underfoot, but I do think it’s okay to hold space for some complicated feelings on this. Right. this is undeniably a good thing, but it’s also undeniably insufficient for one we still have at will employment. Meaning that like with some exceptions, employers can just fire you because they feel like it.

they don’t have to provide a just cause so they can be like, yeah, it’s not, it’s not because you’re trans it’s cause you didn’t follow the like dress code or something. and in a sad, sad display, at least 10 major media outlets wrote about this decision without quoting a single trans person, you can follow Jillian’s rants that are on Twitter for more info on that.

I’ll link to her Twitter in the show notes. This, despite the fact that there was at least one trans lawyer who actually worked on the case and literally did a media briefing about the case. So, even, you know, on queer and trans stuff, we’ve got a lot to go culturally. but also one thing that flew under the radar kind of about SCOTUS yesterday, they refuse to reexamine the doctrine of qualified immunity, which is part of the reason police get to act so terribly without consequences.

And that’s. Terrible. And of course amidst all of this. We are still in the middle of the largest civil rights uprising in like 50 years. I read somewhere that in the time, since these uprisings began, police have killed like 120 people. I’ve seen reports of black folks being found, hung from trees, police have killed and brutalized people for showing up on the streets and raising their voices for black lives.

So I don’t want our feelings about. This decision to water down the energy we have in this movement for black lives. I think it’s important to take the time to celebrate these victories no matter how incomplete they might be. It helps us get the energy to keep the fight going out in the streets and in the halls of government.

But we can’t take these victories as a licensed to step back from the moment we’re in. It is pride month after all. And as we all know, the first pride was a riot. Started by black and brown, queer and trans folks. We owe our heritage to them and we need to keep showing up for them. And for all black folks.

Thanks to Jillian T Weiss for coming on the show to help us understand what happened. And thank you, my friend for listening. I know I talk about Patreon a lot because having that monthly income is something that helps keep the show going, and it helps me keep the bills paid, but I know recurring donations.

Aren’t a thing that works for everyone. So if you want to maybe support the show financially, but you can’t do a monthly thing, you can make a onetime donation. Paypal.me/queersplanning is where you can go every little bit helps. And I really truly do appreciate it before I go. I want you to know that if you’re lost, you’re hurting, you’re scared, if you feel like no one cares and no one understands, you need to know there’s a community out here that loves you cares for you knows that you’re capable of amazing things and that you are worthy of love. If you’re struggling, please, don’t be afraid to reach out until next time friend. My name is Callie Wright and this is Queersplaining. 


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