There’s a fascinating case before the Supreme Court which should be decided in the coming months. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission involves a transgender woman named Aimee Stephens who worked at a Detroit funeral home. After presenting as a man for her six years of employment and after acknowledging a lifelong struggle with her own sexuality, Stephens made the excruciating decision to inform her boss and her colleagues that following a scheduled vacation she would transition to the person she had always known herself to be and would return to work presenting as a woman.
Two weeks later she was fired from her job. After careful deliberation, Stephens decided to take her issue to court. Her case has wound its way through the appellate system and has now been presented before the Supreme Court.
Along with a companion suit in defense of homosexual persons, the case challenges the 1964 law banning discrimination “because of sex.” The case will offer a revealing look at the way the highest court in the land, undeniably roiled in our bi-partisan cultural war but still claiming “blind justice,” will influence our nation – the most diverse in the history of the world – for a generation or more.
On the surface the case revolves around the technicality of language. What does “because of sex” mean? In 1964 the court did not anticipate transgender or gay people when it prohibited discrimination, so can those words be expected to protect Aimee Stephens? Does “sex” implicitly include or necessarily exclude the categories of “gender identity” and “sexual orientation,” concepts of sexuality which had not even been spoken in 1964?
“What ‘might happen’ if we actually choose to protect the 1.5 million Aimee Stephenses?”
Supreme Court conservatives are generally “literalists” in their leaning, claiming that the literal words of the law should guide jurisprudence. Following this logic, one might argue that the 1964 law does not protect Stephens, nor gay people, because they were not strictly, literally intended protection by those words. New legislation would be required to provide that protection. (That Congress has yet to take up this issue, guaranteeing such protection, is sad, but that’s a topic for another day.)
More liberal justices generally try to interpret the broader “intent” of a given law, looking past the legalism of words to the way subsequent case law has derived from a given set of words.
So the court’s conservatives and liberals come to the deliberation with different convictions and differing perspectives. But when the case was argued before the high court, these more technical or philosophical issues eventually gave way to emotional matters. Rather than arguing on the basis of the actual law in question, there was much discussion about potential cultural implications. Notwithstanding that justices are not charged to be the arbiters of cultural norms or morality and notwithstanding that the judicial role is to arbitrate a dispassionate legality, apparently – especially regarding transgender rights – some of the justices could not help themselves.
As is too often the case, in the high court (much like the office break room or the church hallway), the conversation devolved into speculation and emotional conjecture. What “might happen” if we actually choose to protect the 1.5 million Aimee Stephenses in this country? (Yes, there are 1.5 million known transgender Americans.) Departing from interpreting the law, the nation’s most “rational” legal minds spiraled down into irrationality, and the bathroom habits of the American people took center stage at the Supreme Court.
Of course, there have always been concerns regarding public bathroom usage, but rational people – and especially people of more-than-rational-faith – should not allow fear and emotional speculation to cloud our judgment. White people were afraid of drinking out of water fountains after those repulsive “whites only” signs were taken down. Without doubt many were afraid to use a public bathroom if an African-American was present. (You know, “What might happen if we have to go in there with ‘those people?’”)
Frankly, I’m not always comfortable in public bathrooms, but my discomfort with the vulgar language I sometimes hear (even from white, heterosexual, cis-gender men) or what I sometimes perceive as threatening appearance is not a valid basis on which to determine access to bathrooms for a nation. Discomfort is one matter; abuse, sexual or otherwise, is another matter altogether – and the abuse feared by some is illegal now and will continue to be illegal regardless how the Stephens case is decided.
“(We) should not allow fear and emotional speculation to cloud our judgment.”
This is an important case, and no matter how dispassionately our justices may claim to rule, the passion, emotion and fear will ripple through the nation’s soul for years to come. What makes the case tragic, already, is this: There is an undeniable “academic” issue, i.e., understanding what the words originally meant, and there are understandable, if irrational fears, i.e., the “what mights” and the bathrooms.
But these issues actually miss the point – indeed, the most important point. That is, when as a society are we going to get beyond literal words? When are we going to quit hiding behind academic arguments, legalisms and technicalities? At what point as a society will we grow beyond our emotional speculations and irrational fears?
At what point will we mature in compassion and wisdom enough to make our decisions based on the people – the actual, living human beings like Aimee Stephens – who will be affected by them?
And will people of faith be at the forefront, consistently committed to putting people first?