32 United States The EconomistOctober 12th 2019
1H
istory wasmade at the Supreme Court
on October 8th. The word “transgen-
der” made its debut in an argument and the
chief justice repeatedly used the pronoun
“they” to describe an individual. Under dis-
cussion was Aimee Stephens, formerly An-
thony Stephens, who had been fired from
her job as a funeral director in Michigan
after announcing she would start living as
a woman. Her boss, a conservative Chris-
tian who holds that biological sex is “an im-
mutable God-given gift”, felt he could not
condone what he considered a physical im-
possibility by allowing Ms Stephens to
wear frocks to work. He also thought that
the sight of a man dressed as a woman
would discombobulate grieving custom-
ers. So he fired her. After an appeals court
ruled in Ms Stephens’s favour, her boss
took his case to the Supreme Court.
The case has received so much atten-
tion that it has at times threatened to over-
shadow the first gay-rights cases the court
will consider since it ruled in 2015 that gay
marriage is a constitutional right. The
same day, the court heard arguments in the
case of Gerald Bostock, who says he was
sacked as a social worker in Georgia after
officials learned he played in a gay softball
league, and Donald Zarda, a sky-diving in-
structor in New York, whose lawyers claim
was fired after he reassured a female cus-
tomer, to whom he was strapped for a dive,
that he was homosexual. Mr Zarda, who
died in 2014, won his case at an appealscourt; Mr Bostock lost.
For gay and transgender employees
across America the stakes in these cases,
which the court is likely to rule on by the
spring, could barely be higher. Despite suc-
cessive attempts, Congress has declined to
pass a federal law protecting workers from
discrimination on the grounds of sexual
orientation or identity. Fewer than half of
America’s states have such legislation. Re-
search has found that gay and trans Ameri-
cans report significantly higher rates of be-
ing treated badly at work and fired than
their straight or non-transgender col-
leagues. An amicus brief filed by 206 busi-
nesses, including Amazon and Wells Fargo,
in support of the cases before the court, ar-
gues that the absence of legislation makes
it hard for businesses to recruit and retain
the best employees.XY bother
Eliding gay rights with transgender rights
can jar. Sexual orientation and identity are
essentially different, though they some-
times overlap. But the cases heard at the Su-
preme Court this week all hinge on wheth-
er the “sex” bit of Title viiof the Civil Rights
Act of 1964, which bans employment dis-
crimination on the grounds of “race, col-
our, religion, sex, or national origin,” pro-
tects such workers. Lawyers for all three
argue that it does, because they would not
have been fired were it not for their sex. Ms
Stephens says she would not have beensacked had she been born female; lawyers
for Messrs Bostock and Zarda argue that
their attraction to men was considered a
problem only because they were men.
The authors of the Civil Rights Act man-
ifestly did not have gay and transgender
workers in mind when they added “sex” to
their list of banned grounds for discrimi-
nation. In 1964 gay sex was still illegal in
most states and transgender Americans
mostly kept quiet. But a textualist reading
of Title vii—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 trans-
gender employees. That is supported by a
ruling by the champion of textualism, the
late Justice Antonin Scalia. In 1998 he wrote
that a male worker could sue for harass-
ment by other men because whereas
“male-on-male sexual harassment in the
workplace was assuredly not the principal
evil Congress was concerned with when it
enacted Title vii...statutory prohibitions
often go beyond the principal evil to cover
reasonably comparable evils.”
The cases are further bolstered by an-
other, older precedent. In 1989 the justices
sided with a female executive denied a pro-
motion for being too “macho”. The court
ruled that stereotyping—expecting work-
ers to conform to the conventions of their
biological sex—was a form of gender dis-
crimination under Title vii. It would not
take a giant leap of logic to conclude that
discrimination against gay and transgen-
der people is predicated on sex stereotyp-
ing—people should be attracted to the op-
posite sex and conform to the sex they are
assigned at birth—and is therefore illegal.
Yet the Supreme Court never rules with-
out 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 ideo-
logical lines, said he was worried a ruling
in favour of gay and trans employees would
leave religious employers inadequately
protected. Justice Neil Gorsuch, an ardent
textualist, suggested that “when a case is
really close” it might be better to leave deci-
sions that would cause “massive social up-
heaval” to Congress.
His questioning about single-sex bath-
rooms, an issue that has roiled America in
recent years, suggests that he considers Ms
Stephens’s case to be especially vexed. Con-
servative Christians are not the only Amer-
icans who consider biological sex to be im-
mutable. YouGov, The Economist’s pollster,
asked a sample of 1,500 adults to imagine
they were meeting someone for the first
time who was born male but identifies as
female. Half (44%) considered such a per-
son to be male, while half (44%) thought
she was female. The rest preferred not to
say. Some worry that a ruling for Ms Ste-
phens could lead to the erasure of sex-spe-WASHINGTON, DC
The Supreme Court grapples with the meaning of sexGay, trans and the lawSextualism