‘Because of Sex’

Nov 7, 2019

In 2013, Aimee Stephens watched her boss read a carefully worded letter.

“I have felt imprisoned in a body that does not match my mind. And this has caused me great despair and loneliness,” she had written. “With the support of my loving wife, I have decided to become the person that my mind already is.”

Ms. Stephens was fired after coming out as transgender. Now, she is the lead plaintiff in a Supreme Court case that will determine the employment rights of gay and transgender workers across the nation. 

Guests: Adam Liptak, who covers the Supreme Court for The New York Times, and Aimee Stephens, the lead plaintiff in the transgender discrimination case heard by the Supreme Court. For more information on today’s episode, visit nytimes.com/thedaily. 

Background reading: 

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from New York Times I'm likable borrow this is the daily

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today the story behind the biggest Supreme Court case of the year

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it's Thursday November 7th

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my name is Amy Stevens 58 years old and I live in Redford Michigan

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ever since I was a little kid I've been fascinated with the funeral industry I was hired in as a funeral director and embalmer it was a chance to be able to comfort people in there in probably one of the worst times of their lives which was losing a loved one and for me it wasn't calling it was my chance to be able to help people and what about the

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killer funeral home where you worked what would you describe as your relationship to it and the culture of it I thought we had a pretty good relationship I'd been there for over six years I had some ideas about things they could do to improve the

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the practices the stuff around the funeral home they took those suggestions and ran with them in fact I'd just gotten rather substantial pay increase so I kind of wasn't expecting this to go south the way it did any I want if you could read from a letter that you handed your boss shoot

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dear friends and coworkers I have known many of you for some time now and I count you all as my friends what I must tell you is very difficult for me and is taking all the courage I can muster I am writing this both to inform you of a significant change in my life and to ask for your patience understanding and support which I would treasure greatly

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I have a gender identity disorder that I have struggled with my entire life I have managed to hide it very well all these years

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it all started when I was about 5 years old I knew something was different about me but I could not have told you what it was then

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I have been in therapy for nearly four years now and I have been diagnosed as a transsexual I have felt imprisoned in a body that does not match my mind and this has caused me great Despair and loneliness with the support of my loving wife I have decided to become the person that my mind already is I cannot begin to describe the shame and suffering that I have lived with

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toward that end I intend to have sex reassignment surgery the first step I must take is to live and work full-time as a woman for one year at the end of my vacation on August 26th 2013 I will return to work as my true self Amy Australia Stevens inappropriate business attire

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I realize that some of you may have trouble understanding this in truth I have had to live with it every day of my life and even I do not fully understand it myself

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I have tried hard all my life to please everyone around me to do the right thing and not rock the boat as distressing is this is sure to be to my friends and some of my family I need to do this for myself to end the agony in my soul it is my wish that I can continue my work at our G&G are here with funeral homes doing what I've always done which is my best

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that is a really powerful letter

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it took a long time to ride it how long

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somewhere between six and eight months wow all this started back in 2012 I've been living basically two lives one at home and in public and the other work and I got to the point that I couldn't go on living two separate lives it was tearing me apart and I kind of had the feeling that

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I couldn't go forward and I couldn't go backward what was the point of going on at all so in November 2012 I stood in the back yard with a gun to my chest well we're an hour and in that hour I came to realize that I really liked me

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and that I wanted to live so I chose life and in doing that it was only one place to go and that was forward so I started writing the letter and then in July 2013 I gave it to the boss

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he didn't really have any reaction at all as he was reading the letter himself I was kind of like pins and needles waiting for him to finish it

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and then when he did finish it

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he folded it up and put it in his pocket and said I'll have to think about it and then two weeks later he came back with his own letter which was my letter of dismissal

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so you had just been fired yes and so what did you do I went home on that Friday afternoon I talked to my wife and it made me mad mad enough to the point that on Monday morning went to the ACLU and I talked to mr. J Kaplan and he put me in contact with the EEOC so the Equal Opportunity Employment Commission the federal agency correct

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after I talked to the EEOC and they did their investigation they asked me a question and that question was are you willing to see this through to the end

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and I told him then that I was raised on a farm that I was used to hard work and that I didn't give up so easily and that yes I would see this to the end however long that took I had in my mind what I needed to do and it wasn't to really settle out of court it wasn't to just give up and walk away

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after all this was not only happening to me but the thousands of others at that point I knew I had to do something

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and the only thing I knew to do was basically to take it to court and that's what you did that's what I did

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we'll be right back

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the daily is supported by TD Ameritrade with TD Ameritrade you get everything you need to become a smarter investor get help from knowledgeable professionals get customizable tools get investing education designed just for you get no hidden fees and no trade minimums get smarter with TD Ameritrade we're smart investors get smarter my name is Lindsay Garrison I'm one of the many producers behind the daily one of the first stories I worked on for the daily was about this man named John Cho

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funeral director fired for being transgender taking her years long Court battle to the next level want to turn now to that historic day at the Supreme Court Supreme Court is set to consider transgender rights for the first time so it's October 8th the second day of the Supreme Court term I'm in the courtroom along with Amy Adam liptak covers the Supreme Court for the times I'm sitting in the Press Box up by the bench and we'll hear argument next in case 18 107 RG + gr Harris Funeral Home

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James versus the equal employment opportunity commission chief justice Roberts announces the case mr. Cole

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mr. chief justice and may it please the court David Cole the legal director of the American civil liberties Union representing Amy Stevens gets up to argue and there's a charge since in the courtroom this is probably the biggest case of the year and it turns out it's going to be very hard fought one and and what exactly is the question before the court in Amy Stevens case at bottom it's a very simple question it's can an employer fire you based on your gender identity

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we know that you can't be fired because of your religion because of your sex because of your race but the question which the court has never addressed before is can someone be fired based on their gender identity and that same day in a companion case they're addressing the related question of can someone be fired based on their sexual orientation and all of these cases turn on how the court is going to interpret a particular law and what law is that the law is from

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64 its title seven of the Civil Rights Act and it says that private employers cannot discriminate based on race religion and sex and the question for the justices is how do you read the phrase in the law because of six you can't fire someone because of sex what is the exact question about that word sex well nobody thinks that in 1964 when Congress enacted that law the particular lawmakers thought

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they were addressing sexual orientation or gender identity if you ask them they'd probably say they were referring to what they would call biological sex and what other people might call sex assigned at Birth but nonetheless the logic of the words Amy Stevens is lawyer David Cole says and other lawyers say is that in order to fire a me Stevens you have to take account of her sex and therefore this 1964 law squarely applies to her so how exactly are the plaintiffs lawyers making this

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argument before the justices will they use various hypotheticals imagine an employer had six Amy's David Cole gives an example of six Amy's five of them assigned at Birth as one gender one the other and one says I was assigned male at Birth and then he fires the one who says I was assigned male at Birth obviously that person was fired because of her sex assigned at Birth and as we saw that sure sounds like discrimination because of sex similarly in the sexual orientation

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reading if a worker is a man and wants to date women and is left alone but is a man and wants to date men and is fired that sounds like discrimination because of sex that's really interesting the lawyer seems to be saying if you are assigned a sex at Birth and you somehow don't live up to that assigned sex at Birth and something happens to you you're fired from your job because of that expectation wasn't met that's sexist combination that's right and that picks up a

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and strain of Supreme Court jurisprudence they have said it's sex discrimination if you don't live up to a gender stereotype and at the end of the day the objection that's to someone for being transgender is the ultimate sex stereotype it is saying I object to you because you fail to conform to this stereotype The Stereotype that if you are assigned a male sex at Birth you must live and identify for your entire life as a man that is a true generalization for most of us

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but it is not true for 1.5 million transgender Americans that's a separate ground on which Jamie Stevens can win and also a fairly powerful ground and the lawyers in the sexual orientation case make a similar point that a man wants to date a man is not living up to some conventional sex stereotypes and therefore there to on that separate ground they should win and I'm what's the counter argument from the lawyers for the government who are on the other side of Amy Stevens and her lawyer

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whether two basic points one is the nobody in 1964 was thinking this so that's not what the law means but the second is that these are distinct traits sex and gender identity like sex and sexual orientation are different traits their defined they have different definitions and it may well be that Congress should protect the second thing to the government says but it hasn't there's a reason why when Congress wants to prohibit discrimination based on the traits of sexual orientation and gender identity it list them separately

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it doesn't Define sex as including these traits so as long as you treat men and women exactly the same regardless of their sex you're not discriminating against them because of their sex so I'm how did the justices respond to these dueling arguments well some of them say it's up to Congress may I ask you to respond to what some people will say about this court if we rule in your favor and what they will say is that

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either title 7 should prohibit discrimination on the basis of sexual orientation is a big policy issue and it is a different policy issue from the one that Congress thought it was addressing in 1964 and Congress has been asked repeatedly in the years since 1964 to address this question the equality Act is before Congress right now Congress has declined

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or failed to act on these requests and if the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation we will be acting exactly like a legislature we may well be a good idea for Congress to protect gay people and transgender people but they didn't do it in 1964 it's not our job to do it and people will lose faith in the court if they think we're acting as

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Slater's not judges mr. KO let's not avoid the difficult issue okay the second thing that was going on at the argument was barely legal it was more cultural there was a lot of talk about the supposed social upheaval that would follow by a ruling in particular in favor of Amy Stevens it was a lot of talk about sports teams and dress codes and especially and endlessly about restrooms

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and they want to use the women's bathroom but there are other women who are made uncomfortable and not merely uncomfortable but who would feel intruded upon if someone who still had male characteristics walked into their bathroom that's why we have

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different bathrooms so the hard question is how do we deal with that that they wanted to know basically if a ruling in favor of Amy Stevens would result in a free-for-all in the nation's bathrooms and whether that's going to cause the world to go berserk it does that argument hold up when you get to specific work requirements in other words if the objection of a

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a transgender man transitioning the 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 is that something that this ruling would actually impact it's a question not presented in any of the cases it's a wholly separate question it's a question that one day they may have to decide but the fixation on restrooms was really extraordinary so why are the justices and it feels like

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both from the left and the right fixated on this well I guess it's the case that lots of people are made deeply uncomfortable by the idea that they would have to share a restroom with someone they perceive to be of the opposite sex and I guess those are deeply ingrained cultural norms and people on both sides of the ideological I'll on the court really we're troubled by and we're trying to figure out how to deal with the question that not in this case but in some future case they might have

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decide whether or not letting a transgender person use a bathroom is the kind of adverse employment action that could give rise to a lawsuit so and what do you make of these questions and these reactions from the justices at this point in the hearing what does it tell you about their thinking so I walk into this argument thinking what I usually think that typically the five Republican appointees the five conservatives are going to be on one side ruling against the gay and transgender people

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the four Democratic appointees the four liberals on the other side that's you going in proposition on an unreasonable place to start but something's got scrambled there are questions from the left side of the cord deeply skeptical of what will happen to the nation's bathrooms and there are questions from the right side of the Court which seemed very sympathetic to the argument that listen the words mean what they mean and it's our job to interpret the words and they may well protect gay people and transgender people and the person who really

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choose this best is one of the courts ordinarily most conservative members but sometimes a bit of a wild card Neil Gorsuch President Trump's first appointee who is an avowed textualist who really cares about the words and looking at the words in isolation and he just about says listen when a case is really close

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really close on the textual evidence and I assume for the moment I'm not I'm with you on the textual evidence is closed okay we're not talking about extra-textual stuff or time of the text is closed a judge finds it very close if that were the only question in the case the word seemed to protect these people the 1964 title seven word sex yes that because of sex does seem to apply and then he pauses for beaten says at the end of the day

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should he or she take into consideration the massive social upheaval that would be entailed in such a decision but what about the social upheaval that would result which by the way is not a particularly legitimate question for courts to take account of if their job is to interpret the law congress makes the law and the consequences of the law are for Congress to worry about not courts so I walk out thinking what do you know

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the for Liberal votes are probably locked in in favor of an Amy Stevens yes but Amy Stevens needs a fifth vote to win who's that fifth vote it might well be Neil Gorsuch I mean we will find out for a few months and it may be yet another five for case along the usual lines but it did seem that Gorsuch in particular was really struggling with his intuition that the words mean what the plaintiffs what Amy Stevens say they mean it feels like the central

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action here is not about whether the text of the 1964 law applies to Amy Stevens it sounds like in many cases they think it does the tension here seems to be around these justices fears of some kind of practical consequence that they're not even sure will happen if they agree with Amy Stevens lawyers exactly right it's usually the conservatives who say all we care about is the text we don't care about intent we

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care about purpose we don't care about consequences going to drill down and look at the semicolons and figure out what the text means and it's usually the left side of the court it's just know we take account of legislative history in conference reports in floor reports and we try to figure out what Congress meant to do and here they kind of flip sides and a little more broadly I think the court has basically reconciled itself to the fact that they made for major gay rights decisions and that gay people ought to

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to be protected but it's a new frontier to talk about transgender people and these two cases arrived at the court at the same time and there's this feeling that they have to rise or fall together but there's a disconnect the transgender case really does sound like because of sex the sexual orientation case is a little further away from because of sex but culturally the court seems okay with protecting gay people but still a little uncomfortable with this concept which seems new to some of the justices

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there are people in the world who are transgender so there's a mix of things that are a consequence of the fact that they're hearing the two cases together hmm So Adam knowing everything you know about this court having sat through all this what do you think is going to happen in this case it's an uphill fight for Amy Stevens the five more conservative members of the Court

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are likely to rule in lockstep against her she's got some shot at picking up one of those votes if she picks up one vote she wins walking out of the courtroom I thought it was a little closer than you might have thought but if you had to put money on it this is in this kind of big culture wars kind of case a 5-4 conservative Court which would mean that in the case of a judge like Gorsuch if he joins the conservatives against a

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Stevens he will have been prioritizing these fears of societal upheaval that he thinks would result over

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perhaps the kind of straight legal textual arguments if you take him at his word and of course it arguments people are amusing and offering up Devil's Advocate ideas but yes if you look at what he said at argument what you say is right thank you Adam thank you Michael

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so any it's been seven years correct since you're fired from the funeral home

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pretty close I wonder if you have had any interactions with your boss there he's on the other side of this case I'm sure he's tracking it just as closely as you are I haven't spoken to him since I left I did keep in contact with some of my close friends at work but the ones that were closest to me have since passed home

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so I really don't have anything to do with the funeral home at all nowadays

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I have been there for visitations of friends and things that have died in past them you've been there for for funerals yes

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I must be a strange experience it makes me wonder if they even knew who I was what do you mean well we used to go eat at a particular Tony's Restaurant when I was presenting as male and we were in there eating one weekend and the manager of the place ask my wife it says where's your husband

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and she turned around and she looked at me and she says he is now a she and she said we're very happy together and you could have drove a freight train in its mouth because his jaw dropped he couldn't believe what he was seeing I've had people from the church we used to attend

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who have stood in front of me in a restaurant and had no clue as to who I was so I'm happy at the point where I'm at and I'm sorry that they don't understand that

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but to me life was more important than dying I am happy being me

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I don't think there's anything else I'd rather be except me

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and it would be nice to be able to work a job that truly loved that I was good at

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but I was kind of denied that chance and that's where we are now well maybe I'm really grateful for your time I'm glad to have met you and I wish you the best thank you very much we'll be right back

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this episode of The Daily is supported by ABCs for life from executive producer Curtis 50 Cent Jackson comes a powerful new series inspired by a true story one man's Journey from wrongly convicted prisoner to jailhouse lawyer battling a corrupt system from within all in the name of Freedom illegal procedural family drama unlike any other for Life premieres Tuesday starting February 11 10 9 Central on ABC

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here's what else you need to know today I want to let you know as you may know already that we will begin our open hearings in the impeachment inquiry next week we will be beginning with the testimony of Ambassador Taylor and Ambassador Kent on Wednesday house impeachment investigators said that the public phase of their inquiry would begin next week with televised testimony from three senior officials from the state department who will lay out their case against

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a trunk and I think you will see throughout the course of the testimony not only their testimony but many others the most important facts are largely not contested all three officials said they either witnessed or were victims of the president's campaign to pressure Ukraine to investigate the president's Rivals including Marie Ivanovich the former ambassador to Ukraine who was fired after Trump and his allies concluded that she was an obstacle to their

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plan we are getting an increasing appreciation for just what took place during the course of the last year and the degree to which the president and listed whole Departments of government in the illicit aim of trying to get Ukraine to dig up dirt on a political opponent aunt in Kentucky Republican Governor Matt Bevin has formally requested a recount of votes from Tuesday's election in which

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he lost to his Democratic rival Andy beshear by about 5,000 votes we simply want to ensure that there is integrity in the process we owe this to the people of Kentucky the election was a closely watched test of the politics of Engagement with Bevin and unpopular incumbent aligning himself with President Trump and claiming that Bashir represented the forces threatening the president

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that's it for the daily I'm Michael borrow see you tomorrow