After engaging in some back and forth on the oral arguments in the Aimee Stephens case on a Facebook post on someone else’s page, I thought it might be helpful to write up my thoughts at more length.
From the years I’ve been tracking these cases and watching litigation strategies evolve, I know that litigators like Sharon McGowan, Jennifer Levi, Shannon Minter, and Asaf Orr have come to recognize the importance of referring to a plaintiff who is a transgender woman clearly and consistently as female–particularly in courts that may be less familiar with trans people. That has also been essential in murder and hate crimes prosecutions. For example, in the first successful prosecution of a hate crime against a trans woman (Angie Zapata), NCLR worked extensively behind the scenes with the prosecutors to convince them of how important it was to refer to Angie exclusively as a woman, which was not by any means their first inclination–they had wanted instead to go back and forth.
I understand that in the Stephens case, the question of Aimee’s sex is more squarely on the table, since the issue before the Court is whether Title VII protects transgender women and men. But as other Title VII and Title IX cases have shown, it is if anything even more important in such cases to frame the plaintiff in clear and consistent terms that correspond to their actual lived identity and experience. For that reason, the litigators I’ve spoken to believe it was a mistake to frame Aimee Stephens as “insufficiently masculine” as the primary legal claim in the oral argument.
That frame was pervasive—from the opening (somewhat head-spinning) reference to firing “transgender men for being insufficiently feminine and transgender women for being insufficiently masculine” to the repeated claim that Aimee was fired for being “insufficiently masculine,” or because the employer “thought she is a man who is insufficiently masculine.”
That frame may seem to have the advantage both of presenting a very simple legal argument (even if one views Aimee as “biologically male,” she wins) and of appealing even to conservative justices who may not understand or support transgender people. But the cost of doing so is high—too high, in my opinion, which I believe was borne out by the argument.
Among other drawbacks, that framing (understandably) seemed to fuel a great deal of confusion on the part of the justices and even at times Aimee’s own counsel about how to describe her sex, which inevitably had a somewhat de-legitimating and even dehumanizing impact. We already struggle to convince courts that being transgender is a real, deep-seated identity that reflects a core aspect of personhood. To describe a transgender woman (or any woman) as sometimes male, sometimes female defeats that project from the outset. The net effect was to depersonalize Aimee and to portray her—falsely—as a man who identifies and wishes to dress as a woman.
There are obvious examples, such as Chief Justice Roberts referring to Aimee as “a transgender man,” but I was even more struck by how often this basic cognitive dissonance—with its attendant dehumanizing impact—appeared in Aimee’s counsel’s language as well. For example, this paragraph was particularly striking: “But this–this case just asks, when you fire somebody because you say she–he was going to represent himself as a man, because she was using the name Aimee and that’s not permissible because he’s a man, is that sex discrimination? Yes, that is sex discrimination.”
The alternative would have been to describe Stephens consistently as a transgender woman who did not meet the employer’s stereotypical expectations of women, including the expectation that all women necessarily are born female or have not undergone a gender transition (as opposed to a bio male who did not meet the employer’s stereotypical expectations of men). That frame has been used successfully in a number of the lower cases, especially more recent ones, including those that are specifically about bathrooms. It’s also worth noting that even if one uses the other frame (a transgender person departs from the stereotypes associated with their birth sex), it is possible to do so while still putting the primary emphasis on the person’s current sex—e.g., referring to a transgender woman as a woman who does not conform to the stereotypes associated with her birth sex, rather than as “insufficiently masculine.”
One of the unfortunate effects of flipping that frame (as the argument in Harris did) is the difficulty of then explaining why someone who is viewed for Title VII purposes as a member of their male birth sex can be permitted to use the women’s restroom. While the Court undoubtedly would have asked about bathrooms in any case, in prior cases it has proved tremendously helpful when that issue comes up to be able to say that a transgender woman uses the women’s bathroom and a transgender man uses the men’s bathroom. It is much more challenging to explain why, when you have conceded that for Title VII purposes that Stephens is a “biological male,” she should be permitted to use the women’s bathroom.
Aimee’s counsel argued that excluding her would be unlawful because (in contrast to other biological males) she (as a transgender woman) would be injured by the exclusion. But as Chief Justice Roberts immediately saw, that argument seems to concede that the discrimination she would experience is based on her transgender status, not on sex as her own counsel had defined it. (Roberts: “So when it’s analyzed on the basis of sex, there’s no problem, but when it’s analyzed on the basis of transgender status, it presents a whole different case.”)
The only response, which Aimee’s counsel then made, is that anyone—transgender or not—can “challenge a sex-specific rule,” which of course concedes that a transgender woman could only seek to use a women’s restroom by “challenging” the provision of separate restrooms for men and women—that is, only by positioning herself as a male seeking an exception to a sex-specific rule. Obviously, that is quite different than arguing that a transgender woman should be permitted to use the same restrooms as other women because she has changed her sex and is a woman, albeit a transgender woman. Justice Ginsburg appeared (to me) to be trying to steer Aimee’s counsel in that direction when she jumped in to “clarify” the Title IX question asked by Justice Alito (“this is someone who has transitioned from male to female”), but to no avail. Rather than adopting that position (such a person would be a woman), Aimee’s counsel reiterated that “when you have a policy that permits sex segregation, how that applies to transgender people is just a different question,” which again unfortunately appears to concede that such a person is not (at least for purposes of Title IX) a woman.
At any rate, these are some of the concerns that I have heard raised about the argument, which I share. If nothing else, this was a missed opportunity to talk about transgender people—and Aimee in particular—in terms that do justice to their actual experience and lived identity. Missing that opportunity would be less painful if the alternative strategy (adopted apparently for pragmatic reasons) was effective, but at least in my view, it raised more questions than it resolved. The proof may be in the pudding, but at least at this juncture, it seems difficult to imagine even a victory that frames Aimee as “insufficiently masculine” that would genuinely protect her. As Diane Schroer noted (in a law review article by Sharon McGowan talking about Sharon’s litigation of Diane’s case): “I haven’t gone through all this only to have a court vindicate my rights as a gender non-conforming man.”
Then again, Justice Ginsburg is a formidable force, and if anyone can find a positive path forward in this case, it is probably her. In the meantime, it seems important to explore both the pros and cons of the argument—and in particular, to highlight ways that Aimee might have been presented in more humanizing and accurate light.