Legal Docket: Transgender rights in the workplace

MARY REICHARD, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 16th of September, 2019. Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Today, the second half of our report on the major religious-freedom case in the upcoming term of the Supreme Court.

Last week, we presented the point of view of the employer. This week, the point of view of the employee.

REICHARD: The case is titled: R.G. and G.R. Harris Funeral Homes Inc. vs. the Equal Employment Opportunity Commission. 

As you said, Nick, this is Part 2 of my preview of this case. 

I needed more time with this case because despite straightforward facts, the legal principles in play are complex. 

In Part 1 last Monday, I covered the arguments in support of the owner of the funeral home in that caption, Tom Rost.

Today, I’ll cover the arguments in support of an employee fired after announcing a sex change.

The facts, briefly, are these: Anthony Stephens hired on with Harris Funeral Homes in 2007 as funeral director, the public face of the business.

Tom Rost owns that small chain of funeral homes in Michigan. One of the rules for employees is a sex-specific and very restrained dress code, given the nature of the job. It’s completely within federal-law guidelines. Men must wear a dark suit and tie. Women must wear a dark suit with a skirt.

In 2013, six years into his employment, Stephens told Rost he would start using the name “Aimee,” and present himself as a woman, and begin wearing a skirt to work.

EICHER: That didn’t set with Rost’s idea of what his business should be. He thought Stephens’s new identity would distract grieving families.  

So Rost ended up firing Stephens, who then filed a complaint for sex discrimination with the EEOC, the Equal Employment Opportunity Commission. 

The agency took Stephens’s side and found Rost had violated Title VII of the Civil Rights Act of 1964. That prohibits certain employers from discriminating against employees “on the basis of sex,” among other things. EEOC held that discrimination against transgender individuals is a form of sex stereotyping.

REICHARD: The case then wound through the court system. First, employer Rost won. On appeal, employee Stephens won. 

Now Rost appeals to the court of last resort, the Supreme Court.  

The narrow question the justices will decide is whether the word “sex” in that 1964 law also includes gender identity. And specifically in this case, transgender people, individuals with gender dysphoria.

I worked hard to find advocates willing to state the reasoning for their position in favor of Stephens, so that you could better understand both sides of the case. I reached out to 11 different organizations and individuals who either represent Stephens or else filed friend-of-the-court briefs, and only one was willing to talk with me. 

So I am especially grateful to Suzanne Goldberg. She’s a law professor at Columbia Law School, who agreed to talk and speak on tape. 

Professor Goldberg filed a friend of the court brief on behalf of Women CEOs and Other C-Suite Executives in support of Stephens. Among those women are Facebook chief operating officer Sheryl Sandberg.

Because the professor is the only one who spoke, I asked her to go beyond the arguments she specifically made and speak to others on Stephens’s side. She proved more than capable of explaining the major arguments I read in the other briefs.

She and I politely disagreed, as I think it’s likely that you may, too. But I hope you will join me in being grateful that she respected you enough to freely to give of her time to help all of us reason together.

I started by asking her the main point of her argument in favor of employee Stephens—that what happened here was indeed discrimination.

GOLDBERG: The point of this brief is that sexual harassment and sex discrimination remains a real issue for many women in the workplace. And that by carving out an exception and saying it’s okay to discriminate against transgender people because they don’t conform to sex stereotypes, that eats away at the protection for all women and who don’t conform to stereotypes of women and all men who don’t conform to stereotypes of men.

Goldberg asserts that when bosses make decisions based upon how they expect a man or a woman to look or to act, it harms everyone. She cited the example of a woman named Ann Hopkins who was on a partnership track at the accounting firm that was then called Price Waterhouse.

GOLDBERG: She did not make partner, twice. And when she tried to learn what the reasons were, her boss said, and then some of the partners said, well, you know, you’re too brusque. You should go to charm school. You should change the way you look. You should change the way you dress, the way you interact with other people. 

These are the kinds of things that would have never been said to a man. So what that means is that the employer is saying, if you want to be a woman, you have to be a certain way in the workplace. If you want to be a man, you have to be another way in the workplace.

What matters as far as the task to be done, then, is whether the person can do the task, not how they look or the way they do it. And that case decided in 1989 by the Supreme Court said exactly that.

I asked Goldberg to elaborate on what she means by “stereotypes.” What characteristics does she have in mind?

GOLDBERG: That women should have a feminine look and a feminine style, that women won’t be aggressive or tough or vice versa. That men must be aggressive and tough to succeed. 

There are often assumptions that women won’t have strong leadership skills. And at the same time, sometimes there are assumptions that men will and men don’t get adequate training to support them in leadership roles. 

There are assumptions that women might use sexual relationships to advance at work or that men are always sexual harassers. 

There are assumptions that women will be financially dependent on their spouses and take care of the homes and that men will have a female spouses to do that for them. 

So there are all sorts of assumptions about sex, right? Maybe they’re real in our lives. And the question is, can employers treat employees differently because they are male or female based on these kinds of stereotypes?

What about jobs where biological or physiological differences do matter? Should we not adjust policy decisions accordingly?

GOLDBERG: Well, I don’t know about biological, but physiological capacity does affect job opportunities, right? So there are physical fitness standards that people have to meet to be in certain jobs. When you’re talking about a job where physical fitness isn’t the key, it is hard to think about what kinds of biological or anatomical characteristics should be the basis for somebody getting a job or not getting a job. 

And when it comes to people who are transgender, this is always particularly interesting to me. Right? Our employers don’t and should not ask us to remove our clothing before they offer us a job. So they can check whether our anatomy matches our gender identity. Right? And I think most people would agree that would be an outrageous thing to do.

Of course it would. But I wondered whether the professor’s assertion wasn’t conflating biology with stereotypes and conditions of the mind.

GOLDBERG: But in effect, that’s what’s happening here, right? So that an employer is saying we’re going to discriminate against you, keep you from getting this job because of what’s under your clothes or because there’s an “M” or an “F” on the birth certificate. And this is also at the end of the day, all about stereotypes. Who women should be and who men should be. And if anti-discrimination laws don’t get in the way of employers acting on these stereotypes, everybody is harmed.

Remember, the law governing here is Title VII, passed in 1964. People then weren’t talking about transgenderism. People then were talking about civil rights for African Americans and for women. Biological women. 

Goldberg didn’t buy that.

GOLDBERG: There’s nothing in Title VII that references biology. Title VII prohibits employers from discriminating based on sex. Going back to this most basic point we might ask, well, what does an employer need to know about our chromosomal makeup, about what we have or don’t have under our clothing. Is that something that we believe employers are entitled to ask about? 

And if we say, well, yes, they’re entitled to know that we might say, well, why, what are they doing? And so then we would have to say, well, they’re doing it to try to figure out is somebody a man or a woman. And then we say, well Title VII prohibits employers from treating people differently based on their sex. And trying to ferret out is an employee, a man or a woman, do they match the sex stereotypes that we have for men and women- is exactly the point of anti-discrimination law.

Finally, I asked Goldberg about concerns that women’s sports will be obliterated if those with XY chromosomes are allowed to compete with those who have XX chromosomes. 

She questioned the basis of my question.

GOLDBERG: There’s this idea that gets thrown around that there are things that are called biological men and biological women, and I would ask listeners to think, well, what is that? Because if you’re talking about levels, say of testosterone, which can be relevant to sports performance, what we know is women vary widely in the amount of testosterone that they have, as do men. And so the idea that this crazy thing is going to happen to sports and suddenly some women will not be able to succeed in sports because other women who are transgender are going to be winning all of the races or leading all of the games just hasn’t been borne out.

Again, with respect to the professor, nobody said “all of the races” or “all of the games.” 

In truth, some biological men are taking home trophies and knocking out female athletes in track, weight lifting, and other sports. People like Mary Gregory, Terry Miller and Andraya Yearwood, to name three born-male trans athletes. 

They’ve broken female world records with performances that wouldn’t have rated notice had they been competing against other biological men.

Females who lost out against the trans athletes have filed a lawsuit in the track case.

Meanwhile, the House of Representatives has already passed what’s called The Equality Act. It expands Title VII to include gender identity within the meaning of the word “sex.”

That bill is currently before the Senate.

And that’s this week’s Legal Docket.

(AP Photo/Patrick Semansky, File) In this May 23, 2019 file photo, the U.S. Supreme Court building at dusk on Capitol Hill in Washington. 

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