I met Aimee Stephens, the transgender woman at the center of perhaps the biggest LGBTQ court cases in US history, the day before the US Supreme Court heard oral arguments over whether it is legal for employers to fire queer or trans workers simply for being LGBTQ. Monday morning the court ruled that it is not, in fact, legal to fire queer workers for being themselves.
“I found it a little overwhelming when I realized that I could be in the history books,” Stephens told me that morning. “Somebody’s gotta do it and I’d be happy and satisfied to be that person.”
The first emotion I had upon seeing Monday’s decision was relief; the second was elation. And then I thought about Stephens, who passed away just a few weeks ago. She never lived to see her years-long legal fight come to such a momentous end.
That was the moment I shattered and the tears started flowing.
As a trans person, and as a journalist who has spent my whole career explaining why discrimination against trans people should be considered sex discrimination as the court just held, this feeling of victory is an unfamiliar one.
Cisgender lesbians, gay men, and bisexual people have been here before, perhaps most notably in the 2015 Obergefell ruling legalizing marriage equality. But for trans people, who have been told for decades to wait our turn for basic human rights, who have been spat on and laughed at and have over and over watched our sisters of color get murdered in cold blood, this was the first time the high court has seriously contended with the realities of our lives.
The past few years, with the Trump administration’s repeated attacks on LGBTQ rights at large and transgender rights specifically, have been grim. It started early with the administration almost immediately rolling back an Obama-era memo for schools to fairly treat trans students. Then in July 2017, Trump announced he would be ordering the military to ban trans people from serving. The administration went after trans prisoners as well in May 2018, deciding that in most cases, trans people should be housed according to their assigned sex at birth.
It has been a dark four years, with countless lives lost, and we had little reason to believe that we’d find any respite from a conservative Court now.
Many trans people had begun to lose hope before Monday’s ruling
Allowing myself to feel hope is something I haven’t done since the earliest days of my transition, when I came out to my employer and friends and family on October 1, 2016, in the waning days of the Obama administration.
Back then, I felt the tide might have been turning for trans Americans. We had seemingly won the moral battle over North Carolina’s hideous bathroom bill, the administration had finally recognized that we have unique struggles, and they attempted to assuage some of them through administrative fiat.
Still, the election loomed large, and much hope was dashed when President Donald Trump was elected. Things have gotten progressively worse for us since then.
The past week has maybe been the grimmest yet. We started with beloved author J.K. Rowling writing a 3,700-word screed about how trans women and our rights should be considered a threat to women and children. We also lost two of our black sisters, Riah Milton in Ohio and Dominique “Rem’Mie” Fells in Pennsylvania, who were brutally murdered. They were the 13th and 14th trans women in the US to be killed this year, according to the Human Rights Campaign.
Then came an attack on trans homeless people, culminating in the Department of Housing and Urban Development announcing a proposed rule Friday allowing shelters to strictly house homeless trans people according to their biological sex.
It seemed to end Friday with the Trump administration finalizing a Department of Health and Human Services rule that had been in the making for years, one that said sex is defined by biology, essentially giving doctors, insurers, and other medical providers the right to turn away LGBTQ people. This rule would inevitably fall hardest on the trans community since so many of us depend on access to transition care just to exist peacefully in our own bodies.
But then on Saturday, security footage was released showing prison guards laughing at Layleen Polanco, a black trans woman who was locked up on Rikers Island in New York City because she couldn’t post $500 bail, as she lay lifeless in her cell.
Several of my trans friends, most of them white, privileged professionals in their fields, quietly talked privately about calling suicide hotlines. The trendlines were too awful. It felt like we had run out of chances and society was closing its fist around our lives.
Then we realized that Monday would be a Supreme Court decision day and that the court was running out of time in its current session to rule on the Stephens case and two other cases on LGBTQ employment rights.
That was the moment I lost hope. I even tweeted about it.
I don’t have any hope left— Katelyn Burns (@transscribe) June 14, 2020
The trans community has been bracing for a bad Supreme Court result for months now. There was simply no way that a conservative Court, with two justices appointed by a president who specifically ran on arguably the most anti-transgender platform in US history, would rule our way in our first major court case.
I sat in the courtroom last fall as cisgender attorneys argued to the cisgender justices over my rights as a trans person. The very first succession of questions, from Chief Justice John Roberts, was about bathrooms and dress codes. “In other words, if the objection of a transgender man transitioning to [a] woman is that he should be allowed to use, he or she, should be allowed to use the women’s bathroom, now, how do you analyze that?” he asked immediately. Listening to them argue for nearly three hours over where I should go to the bathroom was one of the most frustrating experiences of my life.
And even if somehow trans people were going to prevail at the court, I thought, we’d have to go through Justice Neil Gorsuch, a Trump appointee. He showed sympathy to the arguments made by Stephens’s attorney. “I’m with you on the textual evidence,” he said late in arguments, referring to the Stephens case. “It’s close, okay?”
It was a tiny glimmer of hope, but surely foolhardy. Trans people never have that kind of luck.
And yet at 10 am Monday, when the Court finally released the opinion, there it was. “Held: An employer who fires an individual merely for being gay or transgender violates Title VII,” read the decision. And its author? Gorsuch himself.
It’s a strange feeling, winning such an unexpected yet decisive victory with the trans community at such a low point. We don’t know yet how this decision will carry into the future, but it is a moment that will stick with trans Americans for a long time. It was then that I suddenly recognized that strange feeling coming over me: hope.
I thought again about my conversation with Stephens back in October. I asked her how she was feeling about her case; her answer gives the trans community and our allies guidance on what to do next. “Regardless of whether it’s a favorable decision or not, we still have a lot of work to do,” she said. “When this part’s over, we just work on the next issue, and work hard and keeping going.”