The Aimee Stephens Case: On the problem with describing a trans woman as an “insufficiently masculine” biological male

After engaging in some back and forth on the oral arguments in the Aimee Stephens case on a post on another 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 M 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 Robert 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 that 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 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.

Sex Stereotyping Blast from the Past

Searching through old boxes of briefs last week, I came upon Ann Hopkin’s brief to the Supreme Court, filed by her attorneys James H. Heller and Douglas B. Huron in 1988. For those who don’t have access to the subscription databases (and it may not even be there) or to an SC depository library, here it is. Price Waterhouse v. Hopkins, Brief for Respondent, June 1988.  The scanning job is not perfect, so be forewarned.

When advocates explain M and F to legislators

Another excerpt from Chapter 2. The notes are not included since they’re still a bit messy. You can view the 2012 committee bill hearing here, starting at about 1:45 minutes in. I usually show it in my Trans Theories and Politics class. 

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In 1977, Tennessee legislators voted to prohibit individuals from changing Tennessee birth certificates to indicate their new sex. While policy in Ohio and Idaho achieves the same end, Tennessee is the only state where legislators affirmatively voted to deny this recognition. A bill to reverse this and make it possible to change the sex marker on birth certificates issues by Tennessee was introduced in 2011 and considered by the Tennessee House Health and Human Resources Subcommittee the following year. Because rules for sex classification are usually decided at the administrative level—as common sense “housekeeping” rules that require no public comment or, more recently, as publicly promulgated policies—it’s a very rare thing for lawmakers to expound publicly on the parameters of sex. The exchange between Republican Senator Joey Hensley and two of the bill’s advocates—LGBT rights attorney Abby Rubenfeld and Marissa Richmond, president of the Tennessee Transgender Political Coalition—succinctly captures the points of disagreement. Rubenfeld ends her remarks to the committee by comparing changing gender to changing one’s name.

Rubenfeld: There is no problem with changing birth certificates in this way, to change somebody’s name or to change their gender designation….And changing this law…will do a great service to the few people that need to do this whose lives are prejudiced and are damaged in significant ways because they can’t make this  vital correction….Birth certificates are routinely changed and there’s never a problem about that. We change names on birth certificates. You can go to court here in Nashville and get your name changed for any reason that you want and change it on your birth certificate, any reason that you want and you’ll have a new birth certificate that has that name with no record of your old name.

….

Senator Joey Hensley: So you say that you can change the name but can you change the date or the place of birth on your birth certificate?

Abby Rubenfeld: I don’t think so. I don’t know why anybody would want to.

Joey Hensley: Well, I would think that would be the same way this is. That’s a fact when someone is born, they’re born at a certain time, they’re born at a certain place, and they’re born a certain gender. And the birth certificate is just designating that.

Abby Rubenfeld: But they’re also born with a certain name and it’s changed easily.

Senator Hensley: Names can be changed. Names are something given to a person after birth.

Abby Rubenfeld: But gender designation I would respectively suggest is also just given to a person at birth….But for people who take this extraordinary step to correct their physical gender to match what they really are, that is a fact for them, it’s a fact from birth.

Senator Hensley: We just disagree about that.

The bill would not only have reversed Tennessee legislation on the question and aligned its policy with that of the 47 other states that allow one’s sex designation to be changed on birth certificates. Because the requirements in the bill did not list surgery or body modification of any kind, passage of this legislation would also have catapulted Tennessee to the forefront of policy on the issue at the time. The rule in Tennessee would have been essentially the same as the Department of State’s passport rule, and the two other states with the most liberal criteria for changing sex on birth certificates at the time, California and Vermont, as well as the District of Columbia.[iv] While the advocates and the bill’s sponsors couched their argument in terms of physical transition—the traditional narratives most intelligible to elected officials and the public alike—the evidence required in this bill was a sworn statement from a physician, psychologist or social worker “that the gender of the person had been changed.” Below the questioning turns on what evidence would be appropriate for a change of sex:

Senator Hensley:….But what exactly has to determine someone’s gender. I notice this amendment lists several different people that can have a sworn statement. Physician and then it goes ahead and I don’t know why you list all of these but a surgeon and an endocrinologist and a gynecologist and internist, a neurologist and psychiatrist. Those are all physicians. And then you go to psychologist or a social worker. How can a social worker have a sworn statement about someone’s gender?

Abby Rubenfeld: I would just point out that in this time when we’re trying to have limited government I don’t know why legislators can make that decision either.

Marissa Richmond: Those categories are based on what the US State Department picked for the gender change policy for the passport, and so all of those categories are professional categories who treat and deal with transgender people. And that’s why those specific categories were selected.

Senator Hensley: Is this someone who has gone through all the physical changes to change their gender or is just this someone that cross-dressers, they can change their gender.

Marissa Richmond: Cross dressers are not defined as someone who has changed their gender so they would not fall under this particular law, if this bill becomes a law.

Senator Hensley: What does designate when someone has changed their gender?

Marissa Richmond: ….That is a definition determined by the medical community, and in consultation between that care provider and the patient and to determine what procedures and steps are necessary. And for certain people, for instance in a wheelchair, they would not be allowed in certain cases to get certain procedures but nonetheless their gender change would have actually occurred. But yet the medical profession may not be willing to take it a full step.  But they would still have transitioned, changed their lives, they would assume a new gender and this bill would allow them to have a document which then they can take out and carry on with the rest of their lives and matching up all their other documents at one time.

Senator Hensley:  But you’re adding social worker as somebody that can have a sworn statement. Even if this bill passed it would seem like adding someone who was a social worker is a stretch.

Marissa Richmond: We can remove that particular category.

Senator Hensley: I don’t support it anyway but adding a social worker is a stretch.

 

Senator Hensley simply doesn’t believe sex can change. As he puts it—”we just disagree about that.” But, he advises the advocates, even if sex can change, that change shouldn’t be based on the sworn statement of a social worker. At that moment in the hearing, the bill’s sponsor, Jeanne Richardson, Democrat from Memphis, stood up and offered to remove psychologist and social worker from the bill. She then made a final statement:

For someone to have surgery or to change their lives this totally is a very very serious thoughtful process. This is not something that’s done lightly….It has to do with the person and their personhood and what they are, it’s as essential as anything could be about them.  There are very few people in our society that make this decision, but I respect those people that do….So when they make that decision, and we have medical professionals who will back them up, I see no reason why the rest of us should challenge that.

Despite Richardson’s plea to her legislative colleagues to think of gender identity as a central aspect of personhood that they should refrain from interfering with, a few minutes later the bill voted down.