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Chase Strangio’s Victories for Transgender Rights [1]
['Condé Nast', 'Masha Gessen']
Date: 2020-10-19
On the morning of Monday, June 15th, Chase Strangio, the deputy director for transgender justice at the American Civil Liberties Union’s L.G.B.T. & H.I.V. Project, woke up in his childhood bedroom, in Newton, Massachusetts. After three months of isolating in his small apartment, in Queens, Strangio had driven with his seven-year-old child to Newton, an affluent, liberal suburb of Boston, to see his mother, Joan. Strangio had just buzzed the sides and the back of his head—his quarantine substitute for what used to be a weekly barbershop visit, and a grooming ritual for whenever the Supreme Court might be expected to hand down a decision. The thatch of dark, glossy hair on the top of his head had gone untouched since mid-March. He’d also brought a blazer to his mother’s house, in case he was asked to make media appearances.
The Court never says which decisions will be announced on a particular day, although the three biggest decisions advancing L.G.B.T.Q. rights arrived, coincidentally, on June 26th: Lawrence v. Texas, which struck down sodomy laws, in 2003; United States v. Windsor, which struck down the Defense of Marriage Act, in 2013; and Obergefell v. Hodges, which affirmed the constitutional right of same-sex couples to marry, in 2015. By that precedent, it still felt early to expect a ruling in Bostock v. Clayton County, which took up the question of whether an employer who fires a worker for being gay or transgender is in violation of Title VII of the Civil Rights Act of 1964. Two plaintiffs, Gerald Bostock and Donald Zarda, whose cases were consolidated, were gay men; a third, represented by the A.C.L.U., was Aimee Stephens, a transgender woman who, in 2013, was fired from her job at a funeral home in Michigan after she informed her employer that she was transitioning.
It seemed unlikely to Strangio that the decision in Bostock would be a victory for his side. Anthony Kennedy, who retired in 2018, had been the swing vote in earlier cases. Now the L.G.B.T.Q. advocates’ hopes hinged on Neil Gorsuch, perhaps the Court’s strictest proponent of textualism, the idea that a court should adhere to the words of a law—in this case, Title VII’s prohibition of discrimination “on the basis of sex”—without taking into account the lawmakers’ original intentions. David Cole, the national legal director of the A.C.L.U., aimed his arguments plainly at Gorsuch. Still, it was difficult to fathom that Gorsuch, President Trump’s first Supreme Court appointee, would take a stand in favor of gay and transgender rights. On Friday, June 12th, the Department of Health and Human Services had released a new rule that eliminated protections against sex discrimination in health care for transgender patients—the latest of the Trump Administration’s many blows to trans rights. A good outcome in Bostock, however, might render the new health-care rule moot. Strangio told me, “I had spent all weekend saying, ‘The Trump Administration doesn’t have the final word on sex discrimination—the Supreme Court does.’ And I was thinking, Yes, and then we’ll lose.”
At 9:50 A.M. on June 15th, after Strangio rushed his child through online school assignments, he joined a Zoom call with most of the A.C.L.U. team that worked on the case—twenty-two people, including interns and assistants. In pre-COVID times, they would have attempted to cram into Strangio’s tiny, windowless office at the A.C.L.U. At 9:59, he started pressing the Refresh button on the Supreme Court Web site. He and his colleagues could see that an opinion in their case was posted to the site, and that Gorsuch had written it—possibly a good sign. But the document refused to load. Strangio, punching Refresh again and again, and still talking to his colleagues, started tweeting:
IT’S HERE! I can’t open it
A minute later, a single page loaded, enough for Strangio and the others to see “Held: An employer who fires an individual merely for being gay or transgender violates Title VII’s terms.”
Did we win????
Then:
WE FUCKING WON!? I can’t see it
One minute after that:
6 to FUCKING 3.
Chief Justice John Roberts, who had dissented in the Windsor and Obergefell decisions, had joined the majority.
“Too much violence.” Cartoon by Mike Twohy Copy link to cartoon Copy link to cartoon Shop Shop
I genuinely think this is a full win. We fully won. The HHS rule is completely void.
Finally, all thirty-three pages of Gorsuch’s text loaded. (Slowing things down was Justice Samuel Alito’s furious hundred-and-seven-page dissent, which included eleven pages of dictionary definitions of sex and twenty-six pages of images of military-enlistment forms.) Strangio tweeted a screenshot from the last page of the Court’s opinion: “An employer who fires an individual merely for being gay or transgender defies the law. . . . It is so ordered.”
I AM SOBBING
Around this time, Strangio got a call from Laverne Cox, one of the stars of “Orange Is the New Black” and a fellow trans-rights activist. Cox had taken Strangio to the Emmys as her plus-one and later accompanied him to oral arguments at the Supreme Court. They laughed and cried together on Instagram Live over the decision; Strangio marvelled that the trans-rights movement had convinced the likes of “Gorsuch and Roberts and this generally awful Court that we exist.” Cox wore a black tuxedo gown and mesh gloves over manicured hands—a glamorous apparition from pre-COVID days. Strangio realized that he was still wearing his mother’s hoodie over the T-shirt he had slept in.
Two days after the decision, Strangio sat on the pavement in the courtyard of his apartment building, in Jackson Heights, wearing an Adidas baseball cap, a gray T-shirt, black skinny jeans, and a pin-striped mask. He has big, captivating blue-green eyes and elfin ears, and even beneath a mask it’s obvious when he’s smiling. He smiles a lot, especially when he talks about himself; he appears to find himself amusing, perhaps ridiculous at times. He was still processing news that seemed almost impossibly good. “I feel the concept of happy, but I don’t feel the emotion of it,” he said. “It’s hard to know how to celebrate in isolation. We have been grieving in isolation, and now celebrating in isolation. I am thinking about all the connections that went into this case, and now everybody is in their own homes.”
During the months of COVID-enforced seclusion, two people who played large roles in Strangio’s life had died. His friend Lorena Borjas, a Queens neighbor and trans activist, with whom Strangio had co-founded a bail fund for transgender immigrants, died of COVID in March. Stephens, the transgender plaintiff in Bostock, died in May, after years of ill health. “I was thinking, At least she went out with the hope that we might win,” Strangio said. This sentiment might have provided some comfort had they lost the case. He was crushed to think that, after seven years of fighting the employer who fired her for being transgender, Stephens died without knowing she had prevailed.
Strangio, who graduated from law school in 2010, has worked on some of the most important civil-rights cases of recent years, especially in the area of transgender rights. His clients have included Chelsea Manning, the U.S. Army whistle-blower, and Gavin Grimm, the Virginia high-school student who sued his school district for the right to use the bathroom that corresponded to his gender identity. Strangio has achieved a sort of celebrity as a lawyer and a trans activist. Last year, Annie Leibovitz photographed him for a Google ad campaign, and this summer he appeared in two new documentaries: “Disclosure,” which looks at portrayals of trans people in film, and “The Fight,” which profiles five A.C.L.U. attorneys battling the Trump Administration on various fronts, in which Strangio is featured with his colleague Joshua Block as they craft a case against Trump’s ban on transgender military personnel.
Strangio describes designing a legal strategy as “a combination of a puzzle and an analytical game, and then having to merge a lot of people’s views of those things. It can be brutal. Each sentence gets rewritten fifty times.” In the Stephens case, the process was laced with dread. Stephens’s lawsuit was originally brought by the Equal Employment Opportunity Commission. By the time it reached the Supreme Court, Trump had been President for more than two years and the federal government was now arguing that employment discrimination against a transgender person was legal. Then Strangio read an article in the Wake Forest Law Review by Katie Eyer, a professor at Rutgers Law School. Eyer argued that a truly textualist interpretation of Title VII would leave the Justices no choice but to acknowledge that discriminating against people because they are gay, lesbian, or transgender is to discriminate against them on the basis of sex. “In the briefing room, I said, ‘We can win this!’ ” Strangio said. “Then, after the meeting, I thought, But can we?”
During oral arguments, Gorsuch affirmed the A.C.L.U.’s approach—“I’m with you on the textual evidence,” he told Cole—but he asked if the Court should “take into consideration the massive social upheaval that would be entailed in such a decision,” affecting workplace dress codes and public bathrooms. Cole responded that trans people, and transgender rights, exist, and are widely recognized already. “There are transgender male lawyers in this courtroom following the male dress code and going to the men’s room, and the Court’s dress code and sex-segregated rest rooms have not fallen,” Cole said. “So the notion that somehow this is going to be a huge upheaval . . . There’s no reason you would see that upheaval. Transgender people follow the rule that’s associated with their gender identity. It’s not disruptive.”
[END]
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[1] Url:
https://www.newyorker.com/magazine/2020/10/19/chase-strangios-victories-for-transgender-rights
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