There are two narratives, both of which are true, that can be told about America’s long history of bigotry and discrimination.
The first is a narrative of progress and improvement. In this version, the descendants of former slaves serve in Congress. Same-sex couples enjoy the right to marry. A woman is poised to become the next President of the United States. It’s the narrative President Obama appealed to when he implored voters to “choose our better history.” And it is the story of America that allowed him to become the first African-American president.
But there is another, far more sinister American story. In this story, Native American slavery is largely abandoned, but replaced by African slavery. African Americans become freedmen, only to be trampled by Black Codes and peonage. America’s darker history is what led Stokely Carmichael to quip that the only position for women in his civil rights movement is “prone.” It’s the history that brought millions to the polls in 2004 to lash out against marriage equality.
In America’s sinister history, someone must always be Jim Crow. Someone must be the scapegoat. The hated other. Bigotry never dies, it just finds a new home.
On Thursday, Judge Sean F. Cox, a George W. Bush appointee, declared that transgender people are the new scapegoats. He did so in a 56-page legal opinion that sits as much on the knife-edge of America’s culture wars as it does at a crossroads between two very different futures for American law.
His opinion, should it be upheld on appeal, offers a license to business owners to engage in anti-trans bigotry. It also opens the door to a whole new round of cases alleging that discrimination is permissible just as long as it is justified by an appeal to religious faith.
What Hath Hobby Lobby Wrought?
Judge Cox’s opinion in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes confronts a legal issue that is genuinely uncertain in the wake of a Supreme Court decision that could remake the balance of power between religious objectors and the rule of law. Prior to the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby, a religious objector’s right to defy the law ended when such defiance intruded on the rights of others — and this was especially true in the business context. As the Supreme Court explained in United States v. Lee, “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
Additionally, a long line of cases established that religion cannot be used specifically to justify bigotry. A unanimous Supreme Court held that a restaurant owner’s religious challenge to the ban on whites-only lunch counters was “patently frivolous.” A religious university could not demand tax subsidies so long as it maintained racist policies. A Christian school could not use religion to justify its decision to compensate its women employees less than men.
Then came Hobby Lobby, which held, for the first time, that a religious liberty claim could trump the rights of third parties — in that case, the rights of women seeking contraceptive coverage. Justice Samuel Alito’s majority opinion did address the question of what impact this new regime would have on civil rights laws, but only incompletely. “The Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to race,” Alito conceded. “And prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” Left unspoken is whether other forms of discrimination, such as discrimination against women or LGBT people, also remains forbidden when someone claims that they have a religious right to disriminate.
Enter Judge Cox
R.G. & G.R. Harris should have been a very easy case. The case involves a funeral home owner who fired one of his funeral directors, Amiee Australia Stephens, after Stephens came out as trans and announced her intention to begin living as a woman. Stephens’ boss admits that he fired her because Stephens “was no longer going to represent himself as a man” and because she “wanted to dress as a woman.” He added that he believes that permitting Stephens to dress as a woman “would violate God’s commands because, among other reasons, [the owner] would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.”
Title VII of the Civil Rights Act of 1964 prohibits an employer from firing an employee “because of such individual’s race, color, religion, sex, or national origin,” where “sex” refers to gender and not sexual orientation. So the law forbids discrimination “because of . . . sex” and this particular employer openly admits that he fired Stephens because of his personal prejudices regarding sex. This really isn’t a hard case.
Judge Cox decides to complicate the issue, however, by denying that firing someone because they are transgender is a form of sex discrimination. Instead, he holds that Stephens sole claim is under a line of cases prohibiting “sex/gender-stereotyping.” Stephens case is allowed to proceed because she was fired for failing to “conform to the Funeral Home’s sex/gender based stereotypes as to work clothing.”
As a practical matter, this may seem like a purely semantic difference. Regardless of whether Stephens’ case is framed as a sex discrimination case or a sex stereotyping case, her employer still broke the law. But Cox manages to make a great deal of this seemingly minor distinction.
The Religious Freedom Restoration Act (RFRA) permits religious objectors to ignore laws that “substantially burden” their “exercise of religion,” unless the government can show that applying the law “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” Prior to Hobby Lobby, there was little question that anti-discrimination laws were not trumped by RFRA, and Hobby Lobby itself concedes that laws banning race discrimination further a compelling interest and use the least restrictive means of doing so.
But what about laws banning sex stereotyping?
To answer this question, Judge Cox draws a very fine distinction. The specific conflict in this case arose because of the funeral home’s gendered dress code. Male employees who interact with the public are required to wear a male business suit and tie, while women are required to wear a skirt suit. As a woman, Stephens wanted to wear a skirt suit. Her employer demanded that she wear a male pant suit and tie.
As Judge Cox writes, the federal agency that sued on Stephens behalf “has not challenged the Funeral Home’s sex-specific dress code, that requires female employees to wear a skirt-suit and requires males to wear a pants-suit with a neck tie.” Instead, it argued that “Stephens has a Title VII right to ‘dress as a woman’ (ie., dress in a stereotypical feminine manner) while working at the Funeral Home, in order to express Stephens’s gender identity.” For Cox, this very fine distinction is fatal to Stephens’ case:
If the compelling interest is truly in eliminating gender stereotypes, the Court fails to see why the EEOC couldn’t propose a gender-neutral dress code as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here. But the EEOC has not even discussed such an option, maintaining that Stephens must be allowed to wear a skirt-suit in order to express Stephens’s gender identity.
In essence, Cox argues that the right Stephens seeks, the right to wear a skirt suit at work, is not the “least restrictive means” of eliminating gender stereotyping at work. Instead of seeking this right, she could have instead sued to challenge the workplace’s rule requiring men and women to dress differently.
It’s a confusing ruling for several reasons. For one thing, Stephens wasn’t seeking a sweeping change to her employer’s policy. She was seeking an narrow, individualized accommodation that would allow her to wear female attire to work. It’s far from clear why Judge Cox thinks that forcing an employer to change a company-wide policy is a “less restrictive” option than simply allowing one woman to wear a skirt to work.
Cox’s solution, moreover, doesn’t really address Ms. Stephens’ concern. The entire point of this lawsuit is that Stephens wants to be able to continue her vocation while also living her life as a woman. Changing the employer’s policy so that women can wear stereotypically masculine clothing does little to address her core concern.
The New Hated Other
So Judge Cox’s opinion is an odd one, but it is also a very clever decision. After Hobby Lobby, there is some uncertainty about whether religious objectors enjoy a right to discriminate. But pre-Hobby Lobby law is clear that such discrimination is not allowed. And even Hobby Lobby itself says that religious objections are not a license to engage in some forms of discrimination.
Cox resolves this uncertainty in two questionable steps. He denies trans people the right to bring basic sex discrimination suits, as opposed to sex stereotyping suits, and then he limits the force of sex stereotyping suits in a way that neuters their effectiveness against anti-trans employees. In effect, he imposes a kind of least-favored-litigant status on transgender plaintiffs, weakening their civil rights claims without having to dive into the thorny question of whether RFRA permits other kinds of discrimination.
Cox, in other words, chooses America’s sinister history. In his courtroom, someone must always be Jim Crow. And now, Jim Crow is a trans person.