Why the Aimee Stephens Case is not, unfortunately, a challenge to sex stereotypes; (I blame the ACLU).
This is a complex case, and legal interpretations vary. The oral arguments are informative and one can see here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-107_c18e.pdf).
I oppose the firing of Stephens. Stephens was fired, explicitly, because she is a trans person. However, I oppose the case that Stephens brings to the court — the basis for the challenge. I am not a homophobe, transphobe, racist, nationalist, or Trump fan (just trying to think of other irrelevant labels people might sling). Let me explain why I oppose sex stereotyping and yet oppose the Stephens case (and how that doesn’t make me a “homophobe” or a “fucking moron”).
CB’s interpretation is, imo, naive — based on how she wishes (and I also wish) Price Waterhouse would be interpreted and employed in this case — not how it is actually being used to frame the Stephens case and challenge the firing of Stephens. Notably, Stephens is defended by the ACLU by Cole (who I previously confused with another atty on the Stephens team).*
The ACLU is not simply arguing that prohibiting male persons from wearing “female attire” (e.g., dresses) is a blatant case of differential treatment by sex (which of course it is), such that Stephens’ firing for presenting in “female attire” is a form of illegal sex stereotyping (which it is — and a case I would support). In that form, the argument would simply be that a male person cannot be fired for wearing attire that is acceptable for female persons. Were that the argument, I would be on the front lines in support of this case. However, this is not the argument!! Instead, the ACLU is making Stephens’ ‘female gender identity’/transwoman status central to the case, such that the treatment of Stephens is unacceptable not because she is male (engaging in behavior that is acceptable for females, i.e., sex-based differential treatment) but because she has a “female gender identity” (a sex-gender mismatch).
To be sure, the bar for “illegal sex stereotyping” (i.e., federally prohibited sex discrimination) is not just differential treatment by sex but *injurious* treatment. Due, in my opinion to the fact that they are using this case to gain protections for gender identity that make gender identity equivalent to sex under the law, Cole/ACLU do not maintain that sex-specific attire and presentation is injurious to all people but only trans-people. Thus, they do not challenge sex stereotyping tout court, but rather the application of sex-specific employment regulations to trans* people. The idea, presented in court without much in the way of explanation is that, because of trans* people’s opposite-sex gender identities, sex specific attire is injurious to them. Cole noted, for example, that Harris Homes illegally fired Stephens
“…for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives. That is disparate treatment on the basis of sex.”
As you can see this is specifically not a challenge to “masculinity and femininity” (aka sex stereotypes/gender); rather it is a challenge to the idea it is illegal sex stereotyping to require a male person to be a man. This involves the deployment of the terms “man” and “woman” as gender identities, rather than as terms that refer to “adult human people of a sex”. As such, in the ACLU’s argument, the stereotypes aren’t illegal — rather it is illegal (“injurious sex discrimination”) if they are applied on the basis of sex not gender identity. Thus, not only does this not challenge sex stereotyping tout court, it would establish a precedent for treating persons with opposite-sex gender identities with sex-based rules as something that is harmful (only for trans* people)…which could open the door for treating male persons with trans* identities as female for hiring (quotas), employment restrooms/locker rooms, etc, and thus could very much reverberate in establishing gender identity as something that exists on the same plane if not taking priority to sex.
Most (if not all) of us oppose the firing of Stephens, but rather than challenging this as a clear example of sex stereotyping and the requirement that employees present in sex-specific (gendered) ways, the ACLU argues that trans-identities make sex stereotyping injurious *to trans-identified people*. Some people, ahem, CB, have argued that if you oppose sex stereotypes then you must support Stephens; however, to repeat as I am wont to do, the ACLU is arguing that sex-specific treatment (attire for males and females) is not injurious to non-trans people, but it is injurious to trans* people, leaving sex stereotypes intact for the majority of people who are non-trans.
The court can potentially rule more narrowly, in favor of Stephens on the basis of differential treatment because of sex (and leaving gender identity/trans* status out of it), but that is less likely given the arguments before the court. But, supporting the Stephens argument, means supporting the idea that Stephens should be treated as a female person in the workplace, despite being a male person and living as a man for 60+ years. This is my understanding. I think that suggesting that this does not affect the standing of gender identity under the law and is merely a challenge to sex stereotyping is misguided and naïve (and contravened by even a brief examination of the oral arguments).
WoLF’s amicus brief is fantastic — check it out. Although CB demeans the WoLF lawyers as stupid, uninformed, homophobic (wut?), she is *not* an expert in this area of the law (according to her website)…her expertise is in business/financial litigation (not human rights).
*Previously confused Chase and Cole, thanks to person who saw that. Cole is the lead atty, non-trans. Chase Strangio, also working on the Stephens case for the ACLU, is the deputy director for transgender justice with the ACLU’s LGBT & HIV Project.
