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We Talked to the Lawyer Fighting for the Right to Be Trans at Work

The ACLU lawyer representing Aimee Stephens in front of the Supreme Court explains why we should all be watching her case.

by Katelyn Burns
Aug 28 2019, 4:21pm

Photo by Zackary Drucker, via the Gender Spectrum Collection. 

At this point, many Americans are familiar with what happened to Aimee Stephens: For years, she was a valued employee at a funeral home. Then, in 2013, she came out as trans and began presenting as a woman for the first time. That’s when she was fired.

Stephens decided to sue her former employer, Michigan’s R.G. and G.R. Harris Funeral Homes, for discrimination. In October, the U.S. Supreme Court will hear her case—creating the first opportunity for the justices to directly consider the rights of transgender people.

Those rights have only recently become a mainstream political issue, so many people are unaware that there are now decades of U.S. case law underpinning most of the policies that politicians are currently debating. When SCOTUS hears Stephens’ case in October, all of those lower-court decisions affirming the right of trans people to be included in sex-based nondiscrimination law will be under threat.

At the heart of the fight is a 1989 SCOTUS precedent, Price Waterhouse v. Hopkins, a case involving a butch woman who was denied promotions when she failed to conform to feminine beauty and personality stereotypes. Ultimately, the court ruled that employment decisions cannot be based on sex stereotypes. It’s been a key ruling not only for cisgender women throughout the U.S., but also for those of us in the trans community.

After successfully arguing Stephens’ case in front of the U.S. Court of Appeals for the Sixth Circuit, John Knight of the ACLU LGBT & HIV Project will present her argument to the highest court in the nation this fall. Over the years, he has been central to arguing key trans-related cases all over the midwest.

We asked Knight why this case is so important for not only transgender people, but everyone, and what to look out for this October.

VICE: There are quite a few really important trans-related cases that are at different stages within the legal system right now. Can you give us an overview of the last several years of the law and legal decisions pertaining to trans people?
JOHN KNIGHT: We really are seeing such backlash from the federal government and the Trump administration, and that has just been a shock for all of us because it felt like we were gonna win these battles—and not just in blue states, but everywhere.

There's this way in which we've been making huge progress much more quickly than we thought possible, and then we're seeing that become significantly harder and being a struggle that feels like we're going backwards. It's an arc of progress that seems to have turned back on itself to some degree. Ultimately, I think these are battles we will win and it's just going to be harder than we originally thought it would be, and it's not going to be quite as quick as we thought.

For example, we really thought getting access to surgery in prisons was something that just was a fight that was going to be almost impossible when I first worked on some cases. And yet in the Fields case the Court of Appeals struck down a ban on surgical treatment. Ultimately, we didn't get to the point where the court was ordering surgery for any one person, but now we're at a place where we're seeing courts do that.

It's crucial and amazing, of course. I think we will continue to see more progress there. The other piece of this [is] the fact that we've seen progress in transgender people being treated like human beings and getting access to the rights that should be afforded to our community, which means that there's no turning back. People are not going to go away. People have found their voice and are not going to stop demanding what is right.

Let’s talk a little bit about the SCOTUS case. Can you just give us an overview of what's at stake?
We've had decades in which the courts have recognized that federal employment non-discrimination law protects transgender people from discrimination, and we are facing the possibility that the courts might take that away. That is a daunting challenge, and would be just a devastating result, and it is what the Trump administration is asking the court to do.

What should people who are watching this case be looking for?
I think one way to understand this case is that Aimee Stephens was a valued employee when she was perceived as male, but when she made it clear that in fact she's a woman, suddenly she was fired and all of the years of her valuable service were ended. I think it is easy to see that that is sex discrimination.

In the most basic sense, it is clear that if it weren't for Aimee’s employer’s views that someone they perceive as male cannot live openly as a woman [she wouldn’t have been fired]. That's a sex-based stereotype. We think the people we perceive as male have to act consistent with that in ways that we think are stereotypical, but they can't do things that are feminine. They can't, and they certainly couldn't do what Aimee Stephens is doing, which is to live as who they authentically are, a woman.

There's been cases where conservative attorneys will refuse to use the correct name or pronouns in court. Do you expect any issues with that at the Supreme Court level?
I'm not sure. I don't know. I think it's something we'll have to see. [The other side’s attorneys] did misgender Aimee in their briefing in the Court of Appeals. I'm not sure they will do it at this stage. They want to win this case and I'm not sure that acting like they hate trans people is going to be a successful strategy. I hope.

I'm particularly intrigued by Price Waterhouse as an important precedent for this case. Is there a risk that that decision will be overturned in this case?
Many of us are concerned about the way in which the court might approach or interpret Price Waterhouse. It has been, as you know, an important [precedent] in terms of understanding the kind of discrimination that transgender and non-binary people experience. And that it's illegal because, as we know, it's all about the employer thinking in very stereotypical terms about gender that results in people being fired because of who they are.

We have serious concerns about whether the court might interpret the case in a way that would hurt trans and non-binary [people], as well as everyone; to the extent that an employer could fire a woman for not being sufficiently feminine, as happened in Price Waterhouse, or for not staying at home with her children, denying women jobs because they have children at home while men can be hired in those circumstances. Those are the kinds of things that this court has in the past held that are wrong. And so the damage could be quite broad. I think we have to be optimistic that that is not what's going to happen or it will never go so far as to do that kind of damage, but I think it's a risk.

One of the ways that transphobia works is trans people are treated as whichever sex causes us the most pain in the moment. So people who are transphobic will treat us as male in certain situations when it causes maximum pain and then they'll turn around and treat us as female and other situations when it causes the maximum pain. My frustration with the arguments on the other side is that they want to have it both ways. It seems like they're arguing that trans people just don't have a legal sex under the law.
I definitely think that there's something to what you're saying. The way I have seen it is that they suggest that trans people don't really fit in at all. I think there's a way in which the other side is attacking the humanity of transgender people by challenging something so core and basic about Aimee Stephens and other transgender people. You know, she's not really a man and she's not really a woman. She's something other.

There's people out there who just don't understand why trans people are a thing. Why should anybody care about trans people?
I have found that what works is to listen to trans people and to actually recognize the humanity of people who are transgender in the same way you would recognize the humanity of everybody else in your community. Meeting and hearing from someone who's trans is what really makes a difference for everybody. It is not that hard to think about someone or even a circumstance in which you felt like you are the outsider, to recognize that, we all as a community are better and stronger if we value the humanity of everybody in our community. And that plainly includes transgender people.

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