Aimee Stephens is at the center of the first supreme court case involving the civil rights of transgender people.
By Dominic Rushe
The Guardian (30.09.2019) – https://bit.ly/2oSDnnd – Growing up in a Southern Baptist family in Fayetteville, North Carolina in the 1960s the biggest problem in Aimee Stephens’ household was the length of her hair.
“My dad thought it ought to be cut short. And he made the comment back then that only girls have long hair,” said Stephens smiling. Decades later, after a long struggle that had led her to the brink of suicide, Stephens came out as trans. She wrote to her dad, enclosing photos of her now.
“He looked at the pictures and he said to one of my sisters: ‘She makes a better-looking woman than she ever did a man’,” said Stephens. “I think that was his realization that, after all those years we argued over hair, there was a reason.”
Unfortunately for Stephens, others have not been so accepting. When Stephens came out at work she was fired from her job as a funeral director. Her boss, Thomas Rost, a devout Christian, refused to accept Stephens was a woman. Rost testified that he fired Stephens because she “was no longer to represent himself as a man” and “wanted to dress as a woman”, according to court documents, and said her proposal violated the funeral home’s dress code.
Now 58, Stephens, modest, quietly spoken but full of steely resolve, is at the center of the most important LGBTQ rights case to come before the US supreme court since it ruled in favor of marriage equality in 2015. After years of mixed decisions in lower courts the justices must decide whether or not sex is a defining factor when LGBTQ people are protected from discrimination at work by the Civil Rights Act, the landmark 1964 legislation that outlaws discrimination based on race, colour, religion, sex, or national origin.
Stephens’ case is one of three discrimination cases involving LGBTQ individuals that the court will hear on 8 October and the first supreme court case involving the civil rights of transgender people.
It comes as the court has become increasingly rightwing and the Trump administration has rolled back hard-won protections for the LGBTQ community, and especially trans people. The verdict – not expected until next year – will affect queer and trans people’s lives for generations.
‘I couldn’t keep being two people’
In the summer of 2013, Stephens was fired from her job at R G and G R Harris Funeral Homes, a family-owned funeral business near Detroit. She had been working there for six years, struggling with her identity.
Stephens said she knew she was different from the age of five, but she didn’t have the words or examples in her life to explain it. Growing up there had been no internet, no famous trans people in the media to identify with and no one to talk to. “I knew enough to know that what I was feeling was not acceptable,” said Stephens.
Suffering from depression and with a suppressed “inkling” she might be trans in 2010 Stephens sought out a therapist who gave her homework assignments, going out in public dressed as a woman, clothes shopping, eating in a restaurant.
First she told her wife, Donna. Donna’s reaction was one of relief. “She’d seen the changes in me,” Stephens said. “She was afraid that I may have been cheating on her. I said, ‘Well, it’s kinda true, but not the way you think,’ I said, ‘I’m that other woman.’”
The therapist wanted Stephens to notice other people’s reactions around her. “Quite frankly, there really wasn’t any reaction. Everything seemed normal.”
The couple once went to a Chinese restaurant they had regularly frequented. “The owner asked Donna what had happened to your husband. She turned around and looked at me and said, that’s now my wife. His jaw fell open, he couldn’t believe the difference.”
While most of her family were accepting, Stephens knew work would be different. Many of her co-workers knew already, but she worried about her boss. So much so that it drove her to the edge of despair. Tortured by the thought that she would have to spend the rest of her days living two lives, she considered suicide.
“I got to a point that I didn’t see myself being able to go forward,” said Stephens. “But I knew I couldn’t go backwards either. And if I was going to be stuck in that situation, what was the point in going on? I couldn’t keep being two people.”
About 30% of trans female teens – who identify as female but have birth certificates that label them as male – have attempted suicide, according to the American Academy of Pediatrics. The rate for trans male teens – who identify as male but were certified female – is over 50%. Terrible statistics that Stephens is all too aware of. “Be careful what you decide in respect to hiding who you are,” said Stephens. “Having been in the position of living two lives at once. It’s hard, really hard, and sooner or later you’re going to come to the point where you can’t do it any more.
“I would have you choose life instead of ending it all. In the long run, you’re just accomplishing what a lot of society wishes they could do: erase you from existence.”
‘This is much bigger than I thought’
It took Stephens months to write the letter she would eventually hand to Rost. The two had had a good working relationship up to that point with Stephens receiving praise and pay awards. “I was hoping for the best outcome but that didn’t happen. So here we are,” she said.
When Rost was handed the letter, he read it, put it in his pocket and left. Two weeks later he told Stephens it wasn’t going to work. He offered her 21 days’ severance and a deal that would sign away her right to take legal action. “I couldn’t do that,” said Stephens. “There was too much at stake.”
Stephens’ case is not unusual. Only 21 out of the 50 states in the US have specific civil rights protections for LGBTQ people. While it is now legal for same-sex couples to marry in any state, they can still be fired for coming out across much of the country.
“I’ve come to learn since then that there really is no protection for LGBTQ people,” said Stephens. “That you can be fired from your job, you could be evicted from your housing. You can be denied medical care and that’s when I started to realize that it is much bigger than what I thought.”
For trans people, the situation is particularly dire. Nearly a third (29%) of transgender people live in poverty, compared with 12% in the US population, according to the National Center for Transgender Equality. The problem for trans and non-binary people of color is particularly acute, with black transgender people experiencing an unemployment rate of 26%, twice the rate of the overall transgender community and four times the rate of the general population.
Violence, too is a major problem. Last year 26 transgender people were killed in the US, the majority black transgender women. Discrimination against transgender people is “unfortunately all too common”, said Jay Kaplan, staff attorney for the American Civil Liberties Union of Michigan’s LGBT Project, which is fighting Stephens’ case.
The Trump administration has rolled back rights for LGBTQ people in general and trans people in particular since Donald Trump’s inauguration, shredding federal guidelines that instructed public schools how best to protect transgender students, moving to reinstate a ban on trans personnel in the military, allowing federal contractors to discriminate against LGBTQ people on religious grounds and to remove protections from discrimination for transgender people in healthcare and insurance coverage.
Lack of legal protections has unfairly affected the trans community for too long, said Kaplan. At its heart, he says, Stephens’ case is very simple and should offer more protection in future. Title VII of the Civil Rights Act prevents people from being discriminated against on the grounds of sex. And that definition should include sexual orientation and identity, he argues. “The definition of being transgender is someone who identifies differently from the sex assigned to them at birth. If the motivation for firing somebody is because they’re transgender, it’s motivated by sex. It’s sex discrimination. It’s right there,” he said.
The ramifications of the case could stretch far beyond the LGBTQ community. In 1989 the supreme court found Price Waterhouse guilty of sex discrimination when it denied a partnership to Ann Hopkins, a manager who was deemed too aggressive and “manly” in her behaviour and in need of a “course in charm school” according to one of her bosses. Kaplan worries that a ruling against Stephens could support discrimination against people of any gender who don’t conform to their employer’s stereotypes.
‘Are these people even awake?’
Rost, Stephens’ former boss, is being championed by Alliance Defending Freedom (ADF), a conservative Christian group that has been at the center of legal disputes across the country representing school districts, parent groups and individuals in fights against policies that let transgender individuals use facilities based on their gender identity. It comes after a lower court found in Stephens’ favor.
ADF, the Trump administration and others argue that judgment represented overreach by the court. “Redefining sex discrimination will cause problems in employment law, reduce bodily-privacy protections for everyone, and erode equal opportunities for women and girls, among many other consequences,” ADF wrote in its legal brief.
In this case, as in others, ADF and its supporters are arguing that recognizing legal rights for trans women will make cis-gender women unsafe. Numerous studies have shown that trans-inclusive policies do not endanger cis people.
“In my own mind I have to wonder are these people even awake,” said Stephens. “Trans people have been around, Lord knows, for hundreds, thousands of years and we’ve interacted with them all the time and we haven’t had problems. So why are we dreaming up problems now that don’t exist?”
These issues, Kaplan said, are sideshows meant to distract. What the court has to decide is whether or not sex is a defining factor when LGBTQ people are protected from discrimination at work by the Civil Rights Act.
Kaplan is “cautiously optimistic” that if the court takes a conservative approach and looks at the text of the law, it will find Stephens “was fired for her sex. She was fired as a transgender woman because she didn’t comply with gender stereotypes.”
With the supreme court case approaching, Stephens’ case is gaining attention. At the Emmy Awards last week trans actress Laverne Cox hit the red carpet carrying a one-of-a-kind clutch with the LGBTQ rainbow and lettering on one side that read “Oct 8, Title VII, Supreme Court”.
Cox, along with actors Jesse Tyler Ferguson, Alan Cumming, Peppermint, Mishel Prada, producer and activist Zackary Drucker and others have promoted awareness of the case by reading Stephens’ letter to Rost in a video produced by the ACLU.
But so far the case has not gathered the same attention as 2015’s historic same-sex marriage case. That’s a shame, said Kaplan. “I recognize the fact that marriage is a much sexier issue,” said Kaplan. But as the law now stands you “can get married on the weekend, come back to your job and if they find out you got married, you can be fired.”
Stephens has paid a high price for not conforming to her boss’s stereotypes. She lost medical coverage when she lost her job, a harsh blow for someone who has been out of work for five years and is battling kidney disease. She and her wife don’t like the publicity, and it’s only likely to get more intense. If she knew today what coming out at work would trigger, would she do it again? “Definitely,” said Stephens.