The Fate of LGBTQIA+ Americans Lies In the Hands Of SCOTUS

On October 8, this past Tuesday, SCOTUS heard opening arguments in three cases that likely will determine the future, and the rights, of LGBTQIA+ Americans.  I do not know — nor would I claim to speak for my entire community, but you can count me in the camp that is nervous as all hell.  Will ideology rule the day?  Or will common sense and precedent rule?  Will we finally be equal with other Americans? Or will we be, for the rest of my lifetime, relegated to permanent second-class status, backed by a ruling from the highest court in the land, beyond which there is no appeal?

Before I dive into this, let me say that regardless what SCOTUS does here, it is imperative that the Senate vote on and pass The Equality Act.  I am still more than a little put out with Speaker Pelosi and the Democrats, for failing to do this in 2010, when they had control of all three branches of government.  And understand I say that as an Officer of the North Carolina Democratic Party…and the first openly-transgender person in the history of the state of North Carolina…to run for State Legislature…I am in for 2020.

I will do a separate article about my candidacy in a few weeks.

For a moment, I want to talk about The Equality Act.

Specifically, I want to discuss the latest argument that is fashionable to use against it. You know it: the women’s sports “argument.”  And here I go, about to destroy that argument…

1. Renee Richards played professional women’s tennis in the 1970’s.  She DID NOT dominate her cisgender female competitors.

2. Trans women lose approximately 40 percent of their upper-body strength while on hormones.  Yet we must still support a male skeletal structure, with reduced muscle mass.  If anything, we are at a disadvantage.  This is borne out in the next point.

3. The International Olympic Committee (IOC) has allowed trans female athletes to compete for nearly a decade.  Number of medals won by trans female athletes?  ZERO.

4. Forget for a moment, cisgender/transgender…forget gay/straight.  Consider how women are treated in society. Would you choose that…if you could?  Would you choose that, especially if your only motivation was to “game” women’s sport?  Seriously?

The women’s sport “argument” is a bogus argument. 

Most of us transgender women do NOT play competitive sport, and it has absolutely NOTHING to do with our ability to be gainfully employed without fear of discrimination and harassment.  It has nothing to do with our ability to secure a residence…without that same fear.  It has nothing to do with our ability to obtain healthcare…and nothing to do with the fact that we must live in fear that we will be denied healthcare services…even life-saving healthcare services…by a doctor or a paramedic…simply because we are who we are. 

And it has happened. 

Just two case examples for you:

Tyra Hunter, died Aug 7, 1995. Paramedics stopped treatment, and then laughed at her while she lay broken and bleeding on the pavement. 

The second case is Robert Eads, who was denied the total hysterectomy that would have saved his life. He was denied “because it would have been aiding and abetting his quest to become a man.” Any cisgender woman with the cancer Robert had…would have got treatment, and the hysterectomy.  But they allowed Robert to die of his cancer.

The notion that women somehow need the protection of men…against transgender women and other scary bogeymen should offend all women.  If you are a man who thinks this, then you have NO idea the creative ways in which a simple hairpin could be used!

Men who make the women’s sport “argument” are men have never attended a women’s sporting event in their lives…and never even watched one on TV.  They never cared about women’s sport until they figured out that they could use that argument as a handy hook for their bigotry.  The truth is that they do NOT want us to have equality, because they want to retain the right to murder us with impunity…and in a way that allows them to remain as Pontius Pilate…no blood on their hands.

And yes…I just went there.  I am done being nice about this. 

Discrimination = deprivation — and when you deprive another human being of that which they need to survive…you are actively engaged in murder.  When you support another person being deprived of that which they need to survive, you are passively engaged in murder.  Deal with it.  If you do not like the taste of that, then change the dynamics.  Stop engaging in murder.  It is amazing how many Americans are more offended when you call them bigots – than they are about actually BEING bigots!

In a capitalist country like America…you do not live long without an income, a place to live, and access to healthcare.  Transgender people forced into the underground economy in order to survive are at great risk for violence, disease, encounters with law enforcement, and death.

The bulk of transgender people on sex-offender registries are there because they were prostituting themselves to survive. Not because they are predators or pedophiles, as those who stand against us would have you believe.  And when you get on a registry like that, it is all downhill from there.  Forget ever getting a traditional job at that point.  But in their world, we are supposed to curl up and die somewhere where they will not have to step over our bodies.  Like I said, I am DONE being nice about this!

So, getting back to SCOTUS now. 

Let’s talk precedent, first.  There is precedent, at SCOTUS, that discrimination based on sex stereotypes is in fact discrimination based on sex.  There is also similar ruling on lower court levels. I am the owner of one such ruling.  And my case is cited, at SCOTUS, in the case of Aimee Stephens, the transgender woman who is now fighting in the Supreme Court.

Aimee was working for Harris Funeral Homes, in Livonia, Michigan, as a Funeral Director when she transitioned.  Despite Aimee’s perfect work record, Harris terminated her.  Harris is claiming “religious freedom.” 

Now, let me be very clear here:  NOBODY is asking anyone to change their beliefs…religious or otherwise.  We are simply saying that you may not use those beliefs in a manner that causes objective harm to another person.

Being transgender is not a crime, and we objectively hurt nobody. 

I am aware that, by our very existence we subjectively harm some people, because we offend their sensibilities, and make them just a little uncomfortable.  Well, the Constitution never granted anyone the right to never be made a little uncomfortable. It sure as hell granted ALL of us the right to LIFE.  And when you deprive another person of something which they require to live…you are effectively depriving them of LIFE.

So, the previous SCOTUS case is Price Waterhouse vs. Hopkins.  In that case, Hopkins was a cisgender female employee who was passed over several times for promotion, because she did not dress/act “femininely enough.” 

SCOTUS determined that discrimination against a person for failing to live up to sex stereotypes was in fact discrimination based on sex…and ruled in favor of Hopkins.

Transgender people are discriminated against because we fail to live up to expected sex stereotypes of either men or women.  So the above cited case has bearing here.  There are, as I said, many lower-court rulings saying the same thing…including in my own employment-discrimination case.

So now let’s talk some common sense. 

Transgender people are STILL one sex or the other sex.  And if you would not discriminate against a woman for wearing a dress…and would discriminate against a person you perceive as male for wearing a dress…you are discriminating based on sex stereotypes, and you are discriminating based on the sex of the individual as you perceive it.

Additionally…religion IS a choice.  People can and do change religions every single day.  Yet religion is a protected class.  As well it should be.  NOBODY should be deprived that which they require for life itself…based on anything that does not violate the laws of this nation.  Now…if you were a Christian, and you converted to Judaism…and I discriminate against you for that…am I not ultimately discriminating based on your religion?  Of course i am!  Similarly…were I born male, and then changed to being female…and you discriminate against me for that…are you not ultimately discriminating based on my sex?  Of course you are!

I will not argue with those who believe that being transgender is a choice. 

It is not.  But those who stand against us will accept no proof of that.  Even if it were a choice, do we not have Freedom of Choice in America?

If my gender identity, chosen or otherwise, is to be limited by pain of sanction to only that which is acceptable to others…am I in fact free?  The answer is no.  And I find it incredible that, in 2019, in the nation that is the Leader Of The Free World…there are still those who believe transgender people’s basic civil rights and human dignity…are acceptable topics for debate or compromise.

We will likely not get a ruling on Aimee’s case until at least March 2020. It may be even later, possibly as late as July 2020.  So, meanwhile, we transgender sit and wait.  And we wonder.  And we worry.  Will the highest court in the land of the free…finally rule that we are full humans?  Or will they relegate us to permanent second-class status?  Incidentally, those of us who ARE able to find work pay full taxes…for less than full rights.  Did we not fight a little eight-year war on the issue of taxation without representation?

So we do not know how the Court will rule.  Here is what we DO know. 

207 major employers who collectively employ more than 4 million Americans…have weighed in on the side of LGBTQIA+ Americans.  46 non-profits jointly filed an Amici Curiae in favor of the LGBTQIA+ community in the case of Aimee Stephens.  You can view the Amici Curiae here.

Yours truly is, as I previously mentioned, cited in this filing.  My name right now is at SCOTUS.  You can find my case cited on Page 23 of the filing (page 36 of the linked PDF.)  And I knew it would be in that filing, because I was contacted and asked for permission.  Which of course I gave.

My case was of particular interest on two levels. 

One, it had interstate implications. It was the first such case involving employment discrimination where the Plaintiff (me) was a transgender person.  Because one of the two prongs of my case, in which I acted as my own attorney, was discrimination based upon known mental handicap…a right that existed in New Jersey, where I worked, but not in Pennsylvania, where I lived.  I asserted that, as I was working for a New Jersey employer, I enjoyed all the rights of any other employee in New Jersey, regardless my state of residence.  At the time, Gender Identity Disorder was still considered a mental handicap, and was listed in the DSM.  It has since been delisted, and renamed Gender Dysphoria.

The second reason my case was of interest was that the second prong of my case was sex discrimination.  Three transgender people filed cases in New Jersey at approximately the same time.  Janet Aiello (a Hoboken police officer) and Carla Enriquez filed cases within the same month I also filed mine.  My case adjudicated first, in 1999, and for a time, my name was case law in New Jersey.  Not bad for a pro se litigant up against high-powered corporate lawyers!

The Enriquez case cited my previous ruling,

and the NJ Supreme Court ruled in favor of Enriquez.  And Enriquez became case law in NJ, until the passage of statewide anti-discriminaton law, The Babs Siperstein bill.  Sadly, Babs passed shortly after the bill she fought her whole life to enact…was signed.  The State of New Jersey flew their flag at half-staff in honor of Babs when she passed.

In my case, the employer never once disputed the facts of the case, or the reasons for my termination…only the legality of those actions.  I won on three levels. Every time, the Defendant appealed. We settled out of court in 2002.  And the employer who discriminated against me for being trans…wound up financing my sex-reassignment surgery (now called Gender Confirming Surgery.) Poetic justice if ever there WAS any! 

The terms of the settlement forbid me to name the employer, or disclose the amount of the settlement.  I will only say that I got everything I was asking for, except an apology and an admission of guilt.  It was not worth another two years of appeals.  The next level would have been Superior Court….which, by then, had already ruled in Enriquez’ favor.  But it would have meant another two years of fight, and I had already fought for five years, and was simply weary.  It was not, in my view, worth it…just to also get the apology and admission of guilt.

So…let me say here that I admire the hell out of Aimee Stephens…for fighting all the way to this level.  I am not sure I could have.  Certainly not as a pro se litigant!

So…what do we know so far? 

The four liberal Justices, as expected, have been fairly clear that they are on the side of Aimee Stephens.  The other five…well, we aren’t sure.  And it is this uncertainty that weighs heavy on the mind of my community.

Kavanaugh is playing his cards close to his breast, not tipping his hand at all.  Gorsuch has made comments to the effect that it is, in his mind, “very close.”  We can be sure Thomas will rule against us.  Likely, so will Alito, but we don’’t know.  And that leaves Roberts.  Who may have some sense of the Legacy of his Court.  Will the Roberts Court go down in history as the one who relegated some Americans to permanent second-class existence?  Or will it go down in history as the Court who said, “While we respect your right to whatever religious belief you may have…you may not use those beliefs to cause objective harm to other people.”

So we wait.  And we wonder.  And we worry. 

No human being should have to go through what we are right now.  No human should have to feel what we are feeling.  And it will be 4-8 months before we know.  The tide is turning in our favor in America…but will the Court consider that?

No person has the right to use their rights to deprive others of their rights.  Former SCOTUS Justice Louis Brandeis was quite clear on that. He said “Your right to swing your fist ends where my nose begins.”  But will the Court rule that way?

Every law-abiding citizen has the right to work

and earn a living, free of harassment or discrimination.  Free from fear.  Every law-abiding citizen has the right to rent or purchase a residence without fear that their gender identity or sexual orientation will be a factor in denying them these things.  Or at least they should.

It will be four to eight months before we learn if this nation will live up to its sacred duty to protect all law-abiding citizens. Or if it will renege on all it is supposed to stand for, relegating some of us to permanent second-class status?  Buckle up.

(This article is an opinion piece, not a political ad. PlanetPOV encourages and welcomes all of its members, including those who are political candidates, to freely share their views and opinions at our site).