michael barbaro

From The New York Times, I’m Michael Barbaro. This is “The Daily.” Today: The story behind the biggest Supreme Court case of the year. It’s Thursday, November 7.

aimee stephens

My name is Aimee Stephens. I’m 58 years old, and I live in Redford, Michigan. Now, 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 their — probably one of the worst times of their lives, which was losing a loved one. And for me, it was a calling. It was my chance to be able to help people.

michael barbaro

And what about the particular funeral home where you worked? What would you describe as your relationship to it and the culture of it?

aimee stephens

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 practices and stuff around the funeral home. They took those suggestions and ran with them. In fact, I’d just gotten a rather substantial pay increase. So I kind of wasn’t expecting this to go south the way it did.

michael barbaro

Aimee, I wonder if you could read from the letter that you handed your boss.

aimee stephens

Sure. Dear friends and co-workers, 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. I have a gender identity disorder that I have struggled with my entire life. I have managed to hide it very well all the years. 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. 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. 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 26, 2013, I will return to work as my true self, Aimee Australia Stephens, in appropriate business attire. 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. I have tried hard all my life to please everyone around me, to do the right thing and not rock the boat. As distressing as 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 R.G. and G.R. Harris Funeral Homes doing what I have always done, which is my best.

[music]

michael barbaro

That is a really powerful letter.

aimee stephens

It took a long time to write it.

michael barbaro

How long?

aimee stephens

Somewhere between six and eight months.

michael barbaro

Wow.

[music]

aimee stephens

All this started back in 2012. I had been living basically two lives, one at home and in public, the other at 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 if I couldn’t go forward and I couldn’t go backward, what was the point of going on at all? So in November of 2012 I stood in the backyard with a gun to my chest —

michael barbaro

Wow.

aimee stephens

— for an hour. And in that hour, I came to realize that I really liked me and that I wanted to live. So I chose life. And in doing that, there was only one place to go, and that was forward. So I started writing the letter. And then, in July of 2013, I gave it to the boss. 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. And then when he did finish it, 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.

[music]

michael barbaro

So you had just been fired.

aimee stephens

Yes.

michael barbaro

And so what did you do?

aimee stephens

I went home on that Friday afternoon, and I talked to my wife. And it made me mad — mad enough to the point that on Monday morning, I went to the A.C.L.U., and I talked to Mr. Jay Kaplan. And he put me in contact with the E.E.O.C.

michael barbaro

So the Equal Opportunity Employment Commission, the federal agency.

aimee stephens

Correct. After I talked to the E.E.O.C. and they did their investigation, they asked me a question. And that question was, are you willing to see this through to the end? And I told them 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. After all, this was not only happening to me, but to thousands of others. At that point, I knew I had to do something. And the only thing I knew to do was basically to take it to court.

michael barbaro

And that’s what you did.

aimee stephens

That’s what I did.

[music]

michael barbaro

We’ll be right back.

archived recording 1 Funeral director, fired for being transgender, is taking her yearslong court battle to the next level. archived recording 2 We want to turn now to that historic day at the Supreme Court. archived recording 3 The U.S. Supreme Court is set to consider transgender rights for the first time.

adam liptak

So it’s October 8th, the second day of the Supreme Court term. I’m in the courtroom along with Aimee.

michael barbaro

Adam Liptak covers the Supreme Court for The Times.

adam liptak

I’m sitting in the press box, up by the bench. And —

archived recording (john roberts) We’ll hear argument next in case 18-107, R.G. and G.R. Harris Funeral Homes versus the Equal Employment Opportunity Commission.

adam liptak

Chief Justice Roberts announces the case.

archived recording (john roberts) Mr. Cole. archived recording (david cole) Mr. Chief Justice, and may it please the court —

adam liptak

David Cole, the legal director of the American Civil Liberties Union, representing Aimee Stephens, gets up to argue. And there’s a charged sense 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.

michael barbaro

And Adam, what exactly is the question before the court in Aimee Stephens’s case?

adam liptak

At bottom, it’s a very simple question. It’s can an employer fire you based on your gender identity? 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 were 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.

michael barbaro

And what law is that?

adam liptak

The law is from 1964. It’s Title VII 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 sex?” You can’t fire someone “because of sex.”

michael barbaro

What is the exact question about that word, “sex“?

adam liptak

Well, nobody thinks that in 1964, when Congress enacted that law, the particular lawmakers thought they were addressing sexual orientation or gender identity. If you asked 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, Aimee Stephens’s lawyer David Cole says and other lawyers say, is that in order to fire Aimee Stephens, you have to take account of her sex. And therefore, this 1964 law squarely applies to her.

michael barbaro

So how, exactly, are the plaintiff’s lawyers making this argument before the justices?

adam liptak

Well, they use various hypotheticals.

archived recording (david cole) Imagine an employer had six Aimees.

adam liptak

David Cole gives an example of six Aimees, five of them assigned at birth as one gender, one the other.

archived recording (david cole) 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 is fired because of her sex assigned at birth.

adam liptak

That sure sounds like discrimination because of sex. Similarly, in the sexual orientation setting, 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.

michael barbaro

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 sex discrimination.

adam liptak

That’s right. And that picks up a second strain of Supreme Court jurisprudence. They have said it’s sex discrimination if you don’t live up to a gender stereotype.

archived recording (david cole) And at the end of the day, the objection to someone for being transgender is the ultimate sex stereotype. It is saying, I object to you because you failed 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, but it is not true for 1.5 million transgender Americans.

adam liptak

That’s a separate ground on which Aimee Stephens can win, and also a fairly powerful ground. And the lawyers in the sexual orientation case make a similar point, that a man who wants to date a man is not living up to some conventional sex stereotypes. And therefore, there, too, on that separate ground, they should win.

michael barbaro

And Adam, what’s the counterargument from the lawyers for the government who are on the other side of Aimee Stephens and her lawyer?

adam liptak

Well, there are 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.

archived recording (noel francisco) Sex and gender identity, like sex and sexual orientation, are different traits. They’re defined. They have different definitions.

adam liptak

And it may well be that Congress should protect the second thing, too, the government says. But it hasn’t.

archived recording (noel francisco) And there’s a reason why, when Congress wants to prohibit discrimination based on the traits of sexual orientation and gender identity, it lists them separately. 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.

michael barbaro

So Adam, how did the justices respond to these dueling arguments?

adam liptak

Well, some of them say it’s up to Congress.

archived recording (samuel alito) 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 whether Title VII 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 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.

adam liptak

It 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 legislators, not judges.

archived recording (sonia sotomayor) Mr. Cole, let’s not avoid the difficult issue. O.K.?

adam liptak

The second thing that was going out 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 Aimee Stephens. There was a lot of talk about sports teams, and dress codes, and especially and endlessly about restrooms.

archived recording (sonia sotomayor) 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 different bathrooms. So the hard question is, how do we deal with that?

adam liptak

They wanted to know, basically, if a ruling in favor of Aimee Stephens would result in a free-for-all in the nation’s bathrooms, and whether that’s going to cause the world to go berserk.

archived recording (david cole) Does that argument hold up when you get to specific work requirements? In other words, if the objection of a transgender man transitioning to 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?

michael barbaro

Is that something that this ruling would actually impact?

adam liptak

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.

michael barbaro

So why are the justices, and it feels like both from the left and the right, fixated on this?

adam liptak

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 aisle on the court really were troubled by and were trying to figure out how to deal with the question that not in this case, but in some future case, they might have to decide whether not letting a transgender person use a bathroom is the kind of adverse employment action that could give rise to a lawsuit.

michael barbaro

So, Adam, 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?

adam liptak

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, and the four Democratic appointees, the four liberals, on the other side. That’s you going in proposition, not an unreasonable place to start. But some things got scrambled. There were questions from the left side of the court deeply skeptical of what will happen to the nation’s bathrooms. And there were 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 captures this best is one of the court’s 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 —

archived recording (neil gorsuch) When a case is really close, really close on the textual evidence, and I — assume for the moment I’m with you on the textual evidence. It’s close. O.K.? We’re not talking about extratextual stuff. We’re talking about the text. It’s close. The judge finds it very close.

adam liptak

If that were the only question in the case, the words seem to protect these people.

michael barbaro

The 1964 Title VII word “sex.”

adam liptak

Yes, that “because of sex” does seem to apply. And then he pauses for a beat and says —

archived recording (neil gorsuch) At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision?

adam liptak

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? The four liberal votes are probably locked in.

michael barbaro

In favor of an Aimee Stephens.

adam liptak

Yes. But Aimee Stephens needs a fifth vote to win. Who’s that fifth vote? It might well be Neil Gorsuch. I mean, we won’t find out for a few months. And it may be yet another 5-4 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 Aimee Stephens, say they mean.

michael barbaro

It feels like the central tension here is not about whether the text of the 1964 law applies to Aimee Stephens. 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 Aimee Stephens’s lawyers.

adam liptak

Exactly right. It’s usually the conservatives who say, all we care about is the text. We don’t care about intent. We don’t care about purpose. We don’t care about consequences. We’re 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 that says, no. We take account of legislative history and conference reports and floor reports, and we try to figure out what Congress meant to do. And here, they kind of flipped sides. And a little more broadly, I think the court has basically reconciled itself to the fact that they made four major gay rights decisions, and that gay people ought to be protected. But it’s a new frontier to talk about transgender people. And these two cases arrive 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 O.K. with protecting gay people but still a little uncomfortable with this concept, which seems new to some of the justices, that 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.

michael barbaro

So, Adam, knowing everything you know about this court and having sat through all this, what do you think is going to happen in this case?

adam liptak

It’s an uphill fight for Aimee Stephens. The five more conservative members of the court 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.

michael barbaro

Which would mean that in the case of a judge like Gorsuch, if he joins the conservatives against Aimee Stephens, he will have been prioritizing these fears of societal upheaval that he thinks would result over perhaps the kind of straight legal textural arguments.

adam liptak

If you take him at his word — and, of course, at arguments people are musing and offering up devil’s advocate ideas — but yes, if you look at what he said at argument, what you say is right.

[music]

michael barbaro

Thank you, Adam.

adam liptak

Thank you, Michael.

michael barbaro

So Aimee, it’s been seven years, correct, since you were fired from the funeral home?

aimee stephens

Pretty close.

michael barbaro

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.

aimee stephens

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 on. So I really don’t have anything to do with the funeral home at all nowadays. I have been there for visitations to friends and things that have died and passed on.

michael barbaro

You’ve been there for funerals.

aimee stephens

Yes.

michael barbaro

That must be a strange experience.

aimee stephens

It makes me wonder if they even knew who I was.

michael barbaro

What do you mean?

aimee stephens

Well, we used to go eat at a particular Chinese restaurant when I was presenting as male. And we were in there eating one weekend. And the manager of the place asked my wife, he says, where’s your husband? 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 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. But to me, life was more important than dying. I’m happy being me. I don’t think there’s anything else I’d rather be except me. And it would be nice to be able to work a job that I truly loved, that I was good at. But I was kind of denied that chance, and that’s where we are now.

michael barbaro

Well, Aimee, I’m really grateful for your time. I’m glad to have met you, and I wish you the best.

aimee stephens

Thank you very much.

[music]

michael barbaro

We’ll be right back. Here’s what else you need to know today.

archived recording (adam schiff) 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.

michael barbaro

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 President Trump.

archived recording (adam schiff) 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.

michael barbaro

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 Yovanovitch, the former ambassador to Ukraine, who was fired after Trump and his allies concluded that she was an obstacle to their plan.

archived recording (adam schiff) 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 enlisted whole departments of government in the illicit aim of trying to get Ukraine to dig up dirt on a political opponent.

michael barbaro

And, in Kentucky, Republican Governor Matt Bevin has formally requested a recount of votes from Tuesday’s election, in which he lost to his Democratic rival, Andy Beshear, by about 5,000 votes.

archived recording (matt bevin) We simply want to ensure that there is integrity in the process. We owe this to the people of Kentucky.

michael barbaro