Bathroom Obsession

Justices spent much of their time focused on transgender people using public bathrooms, not only in the case revolving around gender identity, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, but also in the consolidated cases concerning sexual orientation: Bostock v. Clayton County, GA and Altitude Express, Inc. v. Zarda.

“If the objection of a transgender man transitioning to [a] 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?” asked Chief Justice John Roberts during the hearing for R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC.

ACLU Director David Cole, the lawyer representing former funeral home worker Aimee Stephens, who was fired when she came out as trans, had to remind the Court that that issue was separate.

“How you answer this case will not resolve how you answer that case,” he said.

Justices Sonya Sotomayor and Neil Gorsuch continued to pursue the line of questioning, however, with Gorsuch claiming granting LGBTQ workers their rights could result in a “massive social upheaval” if trans people are allowed to use facilities matching their gender identity.

Cole noted that this has not occurred in the states that granted transgender people such rights.

Attorney Pamela Karlan, representing two men who argue they were fired from their jobs for being gay, was also asked about the topic. She told the justices they would be better served to ask their questions of a lawyer representing a transgender individual, not someone representing gay men.