There was a lot of talk about bathrooms during cases about work discrimination.
At an early point in Tuesday’s Supreme Court oral arguments, I realized I had to pee. This was despite having just ducked into the ladies’ room to relieve myself before reporters were called into the press gallery. Maybe it was the large latte I drank on my walk to court. Maybe it was my anxiety, which was rolling through my gut as I prepared to listen to people argue over my civil rights as a trans person.
This, it turned out, was fitting. As soon as the first two of three cases over LGBTQ employment rights under Title VII of the 1964 Civil Rights Act got underway, it was clear to me that what was really on the justices’ minds was also what was on mine: my bathroom usage. The first hour of arguments were over two cases in which gay men had allegedly been fired for being gay, and though neither case had anything to do with gender identity, that didn’t stop even liberal justices Sonia Sotomayor and Ruth Bader Ginsburg from bringing up the most obsessed-over of all trans issues — bathrooms and who gets to use the ones labeled “women” and who gets to use the ones labeled “men,” an argument often led by conservatives.
The “big issue right now raging the country is bathroom usage. Same-sex bathroom usage,” Sotomayor said. According to the official transcript, the word bathroom was uttered nearly 20 times during arguments for a case that, again, had to do with work discrimination based on sexual orientation. The bathroom talk continued into the third case, which was at least about trans rights — but it was about the right to work free of discrimination as a trans person, not about where we pee.
While I get that Sotomayor knew bathrooms were bound to come up and perhaps wanted to beat everyone to the punch, this “raging” issue she described has long been dominated by conservative furor over “men in women’s bathrooms.” It was frustrating to hear cisgender justices argue about bathrooms and religious exemptions when what was at stake was my right to earn a living. The consequences of their decision could affect not just my livelihood but millions of people in the LGBTQ community.
The US trans community had been watching the trans rights case before SCOTUS, R.G. & G.R. Harris Funeral Homes v. EEOC, roll through the justice system for quite some time — and doing so with an imminent sense of dread. According to a 2015 National Center for Transgender Equality survey, 30 percent of all trans people have experienced discrimination in the workplace for being trans. Lack of employment opportunities has led to increased levels of poverty within the trans community and made access to gender-affirming health care more difficult. These numbers could get much better, or much worse, based on the justices’ decision.
On Monday, I spoke with Aimee Stephens, the trans woman at the center of the case who was fired from her job as a funeral director and embalmer almost immediately after coming out to her employer, and came away impressed with her cool optimism. But I’ve still been quite anxious about the outcome. Not this court, not with these five conservative justices, I thought. Trans people don’t ever get breaks in these situations.