Back in October, the evening before oral arguments in her Supreme Court case, I met Aimee Stephens and her wife at a Hyatt not far from the court. She wasn’t unprepared when her boss, Thomas Rost, fired her, she said. At meetings of the trans community group she was part of, people talked about their own experiences with their bosses, including some who went through what she would later go through herself. What happened to her “had probably happened to thousands of other people.” Finding that group, she said, was the first time she learned that “there were people delivering our message. And even then I had no idea that that would be me at one point.”
Stephens, who died in May, was right, about both the scope of the workplace discrimination experienced by trans people and her place among those “delivering our message.” On Monday, in a 6–3 opinion, the high court ruled in favor of Stephens and two gay men, affirming that their employers had violated federal anti-discrimination law by firing them and, by extension, that LGBTQ people were included in the Civil Rights Act of 1964.
Writing, improbably, for the majority, conservative Justice Neil Gorsuch explained the justices’ interpretation of that federal anti-discrimination law:
There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Gorsuch’s fellow conservatives on the court, Justices Samuel Alito, Brett Kavanaugh, and Clarence Thomas, all disagreed (while Chief Justice John Roberts joined the majority). Alito wrote in his dissent that the answer to the question of discrimination was just as clear to him: As written, Title VII didn’t explicitly include sexual orientation and gender identity. And while Gorsuch and the majority didn’t dispute this, their opinion states, “Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.”
The decision resolved the legal debate over whether Title VII’s framers intended for sexual orientation and gender identity to be included in the law—by saying that in prohibiting discrimination on the basis of sex, they had already included it. But there is also a strong case to be made that one of the law’s advocates, legal scholar Pauli Murray, had that broader understanding back in 1964.
Privately, Murray wrote she experienced “the very natural falling in love with the female sex.” This was in the 1930s. In another note to herself, she asked why she was “wearing pants, wanting to be one of the men, doing things that fellows do.” She also rejected the idea that she was a lesbian, in part because she said she was attracted most to “feminine and heterosexual” women, not “homosexual” women. “She wondered why someone who believed she was internally male could not become more so by taking male hormones,” writes historian Rosalind Rosenberg, in her biography of Pauli Murray, Jane Crow. One time, police picked her up while she was dressed in male attire, after which, Rosenberg writes, a psychiatrist diagnosed her with schizophrenia. “In the doctor’s view, she suffered from a delusion: she believed that she was a man.”
Murray may have lacked the words we may use today to describe herself (which also means that writing about her now requires risking misidentifying her). But would she, the legal scholar who advocated for “sex” to be included in Title VII, exclude herself from the law’s purview? As the court has now ruled, she was included from the beginning. There should be no different legal standard, the majority opinion states, when an employer “discriminates against women who are attracted to women, or persons identified at birth as women who later identify as men.”
This decision truly captures the state of the LGBTQ rights movement: hoping—again improbably—that the highest court wouldn’t enshrine anti-LGBTQ discrimination in case law by ruling in favor of employers who fired gay and trans workers, at the same time as many, many more queer and trans people don’t have the means to bring such a case or don’t even have jobs to lose. The case came as an apparent departure, after several decades in which the official “gay rights” agenda had turned to winning acceptance from institutions like the military or marriage and turned away from what happens at work.
As with any appeal to the courts, particularly one seeking recognition of rights, the outcome of the Supreme Court case will necessarily be incomplete. Being protected under Title VII, as Sarah Jaffe reported in 2016, is not the same as being able to make use of those protections. Those who will most easily be able to challenge their employers over discrimination will be those who already have the resources to do so. But the precedent this decision sets extends beyond employment law, possibly to any law barring discrimination on the basis of sex. The Health and Human Services announcement last week removing explicit protections for trans people, for example, could be essentially void.
This decision lands in an unresolved tension: between movement work and impact litigation, between what the law can do and what justice looks like. In the last few weeks, radical demands to wholly restructure the criminal legal system have grown louder and more impossible—even for The New York Times—to ignore. Black queer and trans activists, for example, have long voiced how the law comes down hard on Black trans women, who face discrimination at work and also are routinely profiled and arrested. On Sunday, on the eve of the court’s decision, thousands of protesters took over the streets in Brooklyn in honor of women like Layleen Cubiette-Polanco, who was criminalized under anti–sex work laws, and who died while jailed at Rikers Island two years ago this June. The organizers called it “Brooklyn Liberation, an action for Black trans lives.” Not only was it larger than any such protest in New York, it was one of the largest held during the uprisings of the last three weeks, after police killed George Floyd and Breonna Taylor. As they marched, in contrast to the routine formalities of Pride, the action was an echo of Pride’s roots, in the streets outside Compton’s Cafeteria and the Stonewall Inn, more than 50 years ago. And it was also, one day in advance of this decision, a demonstration of all that’s left undone, whether affirmed by the Supreme Court or not.