- James Esseksdirector of the ACLU LGBT & HIV Project.
The Supreme Court heard oral arguments Tuesday in three cases that will determine whether LGBTQ people can be fired from their jobs due to their sexual orientation or gender identity. Among the court’s conservative justices, only Neil Gorsuch appeared open to prohibiting such workplace discrimination. One of the cases centers on a transgender woman from Michigan named Aimee Stephens, who was fired from her job at a funeral home in 2013. The Supreme Court is expected to hand down its decision in the three cases by early next summer. We speak to James Esseks, director of the ACLU LGBT & HIV Project, who attended Tuesday’s oral arguments before the Supreme Court.
AMY GOODMAN: This is Democracy Now! I’m Amy Goodman, with Juan González.
JUAN GONZÁLEZ: Well, the Supreme Court heard oral arguments Tuesday in three cases that will determine whether LGBTQ people can be fired from their jobs due to their sexual orientation or gender identity. Among the court’s conservative justices, only Neil Gorsuch appeared open to prohibiting such workplace discrimination. One of the cases centers on a transgender woman from Michigan named Aimee Stephens, who was fired from her job at a funeral home in 2013. She spoke outside the court on Tuesday.
AIMEE STEPHENS: I would like to say thank you for all the support that I’m getting. I appreciate each and every one of you. I am glad to have been able to bring this before the courts. And what happened to me was wrong. And hopefully we can fix that and correct it from this point on. Thank you.
AMY GOODMAN: Well, for more, we’re joined by James Esseks, director of the ACLU LGBT & HIV Project. He attended Tuesday’s oral arguments before the Supreme Court.
Thanks so much for being with us. We just have a few minutes. What surprised you most? Lay out the key questions and where you think the court’s going.
JAMES ESSEKS: Sure. So, the key question here is: Is it sex discrimination to fire someone because they’re transgender or lesbian, gay or bisexual? And, obviously, our position is that of course it is. You can’t explain who a transgender person is without talking about the person’s sex. You can’t explain who a gay, lesbian or bisexual person is without talking about both the sex of the individual and the sex of the person that the person is attracted to. So, what else could it be, other than sex discrimination?
Lower courts have increasingly recognized that indeed anti-LGBT discrimination is a form of sex discrimination, and have allowed LGBT plaintiffs to win cases, to redress discrimination in a wide range of contexts, from employment to housing to education in the schools and access to healthcare. And all of that is at risk here, because the Trump administration was in the U.S. Supreme Court yesterday asserting that it should be legal under federal law to fire people just because they’re transgender or just because they’re lesbian, gay or bisexual. Now, that’s kind of astounding by itself and a complete turnabout from the position that the Obama administration took.
In fact, the EEOC, the Equal Employment Opportunity Commission, a federal agency whose job is to enforce the federal law that bars sex discrimination, the EEOC brought the lawsuit against the funeral home on behalf of Aimee Stephens. And now what we have is the EEOC represented by the Justice Department in the United States Supreme Court arguing the other side of the case, saying, “We should never have brought the case, because there was no violation of law there.”
So, in terms of what happened in court, the question in any case like this is: OK, do we have five votes? So, the four more liberal justices had a bunch of questions, but my takeaway is that I think that they would vote for the plaintiffs, for the employees in both of these — on both of these issues. As has been reported widely, Justice Kavanaugh — excuse me, Justice Gorsuch asked many questions of both sides and seemed to be wrestling with this issue in a way that his colleagues on the right were perhaps not.
JUAN GONZÁLEZ: And he is what’s known as a textualist?
JAMES ESSEKS: Indeed, he is a textualist. And what that means is that a textualist says, “Look, I don’t really care what Congress was thinking about when they passed the law. I’m not so worried about what they thought they were doing. I’m going to look at the words that they used, and I’m going to figure out what do they mean in real life, and apply them as such.”
And so, the arguments from the Trump administration were largely nontextualist arguments. They were saying Congress wasn’t thinking about LGBT people in 1964. Our point, that seemed to appeal to Justice Gorsuch, is it doesn’t matter what Congress was thinking about. The question is — the statute says no sex discrimination. Sex is supposed to be irrelevant to people’s ability to perform work. And that is what happened here.
AMY GOODMAN: And what about Kavanaugh?
JAMES ESSEKS: So, Justice Kavanaugh asked one question, that was not particularly illuminative. And so, we’re not sure — I don’t — I can’t tell, from that, where he is going to come out.
Justice Gorsuch seems to be wrestling with this, had questions for both sides. And I think that he thinks that — my sense is, he thinks that, yes, sex was one of the reasons that Aimee Stephens was fired and that the two gay men were fired. I think he’s also wrestling with a separate set of questions —
AMY GOODMAN: We have five seconds.
JAMES ESSEKS: — which is: Dress codes, restrooms, how does that all work out? They’re worried about the consequences of ruling for the LGBT plaintiffs.
AMY GOODMAN: Well, we want to thank you for being with us, and, of course, we’ll continue to follow this. James Esseks, director of the ACLU LGBT & HIV Project. I’m Amy Goodman, with Juan González. Thanks so much for joining us.