Bonus Pod: LGBTQ Victory at the Supreme Court, but Trouble at HHS

The Supreme Court this week ruled on a case in which they decided it was illegal to discriminate against LGBT people in employment situations under Title VII of the 1964 Civil Rights Act. The decision was ruled 6-3, and the majority opinion was penned by Justice Neil Gorsuch and Justice John Roberts also joined the majority side. Katelyn Burns, political reporter covering general politics and LGBTQ issues at Vox, talks to us (and celebrates with us!) in this bonus podcast episode.

The Bostock vs. Clayton County ruling means that it is illegal to fire people for being gay, lesbian, bisexual, or transgender. The LGBTQ community has been bringing Title VII claims to the Supreme Court for over 50 years, meaning this decision is a momentous occasion. Unfortunately, though, it certainly hasn’t been all good news for LGBTQ folks this week—on Friday, June 12th, 2020, the Trump administration finalized a total wipe-out an Obama-era rule that includes LGBTQ people in sex-based discrimination. This former rule also provided protections for people who are seeking abortion care or have received an abortion in the past. This rule essentially makes it legal to discriminate against transgender people in healthcare settings (although this has now been somewhat muddled by the recent Supreme Court ruling).  

 The Equality Act would provide consistent protections for LGBTQ folks in areas including housing, employment, education, and more. Find more information about this bill in the links below.

Links from this episode

Katelyn Burns’ Vox profile
More information on Bostock vs. Clayton County
More information on the most recent HHS rule finalization
More information on the Equality Act
The Supreme Court has given trans people reason to hope again

Transcript

Jennie: Welcomes RePROs Fight Back, a podcast where we explore all things reproductive health, rights, and justice. I'm your host, Jennie Wetter. And I'll be helping you stay informed around issues like birth control, abortion, sex, education, and LGBTQ issues, and much, much more-- giving you the tools you need to take action and fight back. Okay, let's dive in.

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Jennie: Hi, repros, and welcome to this week's special bonus episode. I'm your host, Jennie Wetter. My preferred pronouns are she and her. So the past like week and a half have been just really, really rough weeks for the trans community. It has been full of some really low moments. Luckily, topped with a really high moment on Monday, you know, it all kicked off with last week. If you follow, um, trans people on Twitter, you probably already knew this, but if you don't, this might be new to you until this week, which was J.K. Rowling being a TERF and being very anti-trans. I, something that has been talked about, and I've definitely seen it come up three or four times previously, but for some reason, this past time, it really, it was much more, a much bigger conversation than it has been in the past. And, you know, she really dug in and doubled down on her, her anti-trans stance. And so that kicked off a really shitty week, you know, after that there were two black trans women who were murdered Riah Milton and Dominique Fells, and they were the 13th and 14th trans women who were killed this year so far, according to the Human Rights Campaign. So again, just a shitty week and it ended last Friday with the Department of Health and Human Services finalizing a rule that they have been working on that will allow doctors to discriminate based on sexual orientation and gender identity. We'll be talking about that in this episode. So I'm not going to dig too deep on it. So it was been a really, really rough week for the trans community. And, you know, as a cis, straight, white woman, you know, I, I can't understand all the emotions and everything they were going through. I can feel a lot of empathy for them and, you know, reach out to the people in my life to make sure they were doing okay, but it was a really rough week. And I don't know about you all, but when I logged in to Twitter on Monday to see what Supreme Court decisions were going to be handed down, I was nervous. I was nervous. You know, there's some big decisions we're waiting on-- June Medical Services. What about abortion access? [I felt like] there was nothing good that was going to come out. I was sure, I was really worried. And when I saw the first tweets coming in, that we won, um, LGBTQ discrimination in the workplace, I think I had to check like three or four different sources too, before I believed it. It was so amazing. It was such a needed victory. And today's guest actually wrote a piece about, uh, what a great win and how needed it was for the trans community. So make sure to read Katelyn Burns’ piece on Vox about how the Supreme Court has given trans people reason to hope again, I'll make sure to include it in our show notes. It was so needed. And I was so happy and so excited and emotional seeing that. And then I saw someone tweet about the late Aimee Stephens, who was the plaintiff on the trans case [inaudible] We won and I just started crying. It just, it was such a long road and Aimee to not make it to see it, but it was so good to see that they won. And I am just so excited. It's not the end. There's still so many fights to have, as you will see in this episode, but it was a big win. And let's sit in that for a little bit, cause it was needed in all the dark times we've had right now. So today I'm going to talk to one of my favorite people to talk to about reproductive health and rights and LGBTQ issues. And that's Katelyn Burns, a political reporter at Vox.

Jennie: I am really excited to get to talk to Katelyn about everything that has been going on. We are going to talk about the really high highs of the Supreme Court case and the really low of the new HHS rule. And I'm excited for y'all to hear our conversation. So with that, I'll take you to my interview with Katelyn. Hi Katelyn. Thank you so much for being here today.

Katelyn: Thanks for having me on.

Jennie: I'm always excited when I get to talk to you and it's actually good news, at least most of it, which is nice.

Katelyn: Yeah, definitely.

Jennie: So before we get started, do you want to do a quick introduction who you are and your preferred pronouns?

Katelyn: Yes. My name is Katelyn Burns. I'm a political reporter at Vox and I cover LGBT issues and general politics and my pronouns are she/her.

Jennie: Thanks. So I think we just have to jump right in like, and talk about the Supreme Court. Like it is so exciting. Uh, so I guess before we get to the good part, we should talk about like, what are the cases they were deciding?

Katelyn: Yes, yes, yes. So we've, we've talked about these cases before, but there are essentially three different cases that were combined into one that were…trying to determine whether discrimination against LGBT people in employment situations is actually a law under Title VII of the 1964 Civil Rights Act. They had oral arguments last October… And, and, you know, I think that at least for myself and a lot of my trans friends, you know, this is the first major trans rights case, the first trans rights case in general to hit the high court. So I think we had sort of lowered expectations, especially with the court's conservative lean and thinking, you know, it's our first time out. They don't know anything about us. Like we shouldn't get too excited for a good result, but has it turns out we won?

Jennie: I know I said this, we were talking before this, but like honestly I had to check like three different people and what they were saying before it sunk in that this was real and really happening.

Katelyn: Yeah. I kept expecting to wake up on Tuesday and have it all be a dream.

Jennie: Yeah. Like I just, I was so ready for, I guess, you know, it was one of those things, like you're kind of expecting the worst, but you're like, you don't know how much you were expecting it until you see like, Oh my God, it's like the good thing.

Katelyn: Yeah. And the decision itself had a couple of surprises. I mean, not just the result, but that, uh, the opinion is written by Neil Gorsuch of all three. And it was 6-3. I think the most surprising part, which hasn't been discussed as much as I thought it would is that Chief Justice Roberts joined the majority as well, which prevented, you know a 5-4 decision. So I thought that was actually even more interesting than Gorsuch writing the opinion. I mean, it's not common for like the most likely for the swing vote to write the opinion. Um, that's often the way it goes with the court, just because there's a lot of wheeling and dealing in the background. But the fact that Robert's also joined with the majority, I think is, is very significant.

Jennie: Yeah, that was, I was, yeah, same. I like, I really expected it to be a 5-4 decision… Um, so when I saw it with 6-3, it was pretty shocking.

Katelyn: Yeah. Although I am slightly uncomfortable with the sort of liberal celebration of Neil Gorsuch now because you know, June Medical's coming any day now,

Jennie: I… somehow this has made me even more pessimistic, which I did not think was possible.

Katelyn: Yeah. I am. I don't have high hopes for that one, but…

Jennie: Yeah. So sorry about that. But it's the…there can't be two good things. Like it's definitely going to be all terrible now. So what, what is this going to mean? What does this mean for the LGBTQ community?

Katelyn: Yeah. So simply put, it means it's illegal to fire people for being gay or trans or bisexual in many states. Yeah. So I forget exactly how many states it was still legal and, but it was, it was more than a dozen, I think it was 17, but I don't want to be quoted exactly on that.

Jennie: I guess the reason I was thinking 27, so clearly…

Katelyn: Yeah. So it's probably a number with seven in it. It's pretty…yeah, I mean…[both laugh] it's, it's a pretty significant validation, especially of transgender jurisprudence over the last couple of decades, you know, I was speaking to somebody else this morning, and I noted that like, you know, gay and lesbian people have been bringing Title VII claims to the Supreme Court for 50 years, 60 years. Like this is not anything new, like going back to Stonewall times, this claim has been litigated over and over and over again. I think what happened, and I'm not like a legal expert, I'm not an attorney, but I'm just somebody who sort of has to know the history in order to explain it in my journalism. But I really think what happened is trans people, all of a sudden started making these claims and it did take a couple of decades, but the way that trans people are able to argue these Title VII cases, I think opened the door for more success on the LGB side, which is sort of backwards of how you think about queer rights in the U.S. where it's always been, the white-cis normative, uh, you know, gays that, that got theirs first. I really do think in this case, it was trans people who sort of paved the way for the rest of the community from a legal standpoint.

Jennie: I remember you were having that thought when we talked in the fall, cause you thought there was a strong possibility it could be a split decision and that the trans side would be the decide the good decision and the, the others were, would not be.

Katelyn: Yeah. And it's simply because when you're discriminating against a trans person, it's, very obviously to do, at least something related to the trans person’s sex. Whereas on the LGBT side, there's just one more step to it. So the, the legal argument becomes a little bit more complicated where it's, it is based on the plea sex, which is what of course that's found, but it's also dependent on the sex of the person they're dating. So it's just one extra step. But I think to get there, the sort of legal foundation needed to be built before we could do that. Of course, there's cultural aspects to this too. I mean, if LGBT people weren't, you know, more and more accepted all the time, we wouldn't even be having this conversation.

Jennie: Right. For sure. Yeah. So, you know, a lot of the things I've seen talking about, like this could have huge implications for other areas where we're seeing discrimination, um, particularly around the trans community. So I guess that takes us to the bad news, which last week was a week.

Katelyn: Yeah. It was a very bad week.

Jennie: Uh, yeah, it was a week and it ended on Friday with the final rule that the Department of Health and Human Services put out, allowing discrimination in healthcare. Do you maybe... we'll talk a little bit about, so what is this new rule?

Katelyn: Yeah, so the rule replaces an Obama era rule, which determined that LGBT people were included in the definition of sex-based discrimination. So the Trump administration rolled that back, but interestingly, they also, within the same rule, there were protections for people who were seeking an abortion or had an abortion in the past, which was also wiped out by the Trump administration with the rule on Friday. So it was, that's something that we've expected for a long time. There's been ongoing litigation about it, but it didn't make the finalization of the role any less devastating.

Jennie: Yeah. Yeah, for sure. Um, I was talking to somebody who sits on a board at a hospital and was talking about how this just got finalized. And they were like, I thought this just went away. Like I thought it was done and it wasn't going to happen.

Katelyn: Yeah, no, I mean, I always expected it to happen. You know, the administration has been clear from day one that they were committed, especially to rolling back the rights of trans people through any means necessary. So yeah, it didn't surprise me at all.

Jennie: So what, what is this going to mean for the, for trans people in particular trying to access health care now?

Katelyn: Well, it's a little bit muddled now because of the Supreme Court decision, the significant part about the Supreme Court decision as it applies to the HHS rule is that, of course there said that discrimination against trans people is sex-based discrimination because you're making decisions at least in part, because of, you know, individual sex, which is how the statute reads now, Title VII only applies to employment decisions. So we will have to unfortunately relitigate this again, but the fact that the Supreme Court has defined sex discrimination this way, I think bodes well for people who are challenging the new rule, but for practical purposes, let's pretend that's good. Didn't make their decision. What it means is that healthcare providers and insurers can now legally discriminate against LGBT people. And of course that, that especially hits hard for trans people because we need the medical system, you know, to transition even though not all trans people choose to transition. So potentially you could see doctors who just refuse to see trans people in the first place. I think I've told this story before, but there was a trans man, George Eads… in the nineties who developed ovarian cancer. And yeah, he went to, to get it diagnosed. He had a biopsy done, and then he never heard from the doctor and a couple of weeks later, like a patient support person called and said, how are you doing with your diagnosis? And he goes, what diagnosis? And at that point, he, he found out that he actually had cancer and he called his doctor back and said, Hey, why didn't you call me to talk about the diagnosis and my treatment? And the doctor's response was, well, to be honest, when I saw that you were a transsexual, my first thought was to send you to psychiatry and not treat your cancer. So he ended up not being able to find an oncologist who could treat his cancer and he, he passed away from it. So that's, you know, a scenario where the Trump administration, would now allow that to happen again.

Jennie:…that story breaks my heart every time.

Katelyn: Right? And it's not a lone story. And now the Trump administration is trying to make that the story for so many. Yeah. I mean, if you read the rule, they try to make it out to be, oh, hospitals can legally, mis-gender a trans person, right? Because to their base, that's a meaningless act or they can, they can register somebody according to their birth assigned sex. Even if they object to it, they try to make it sound like it's that. But really they, there is no like legal basis for trans people to fight back against like the, the Eads situation. So the good news is…I think it's Robert Eads, by the way, not George…the good news is that the SCOTUS decision could hopefully stop this rule from starting to go into effect. Yeah. I think it makes litigation against it a lot easier. I don't think that it's, I don't think that the Supreme Court decision directly will be able to overturn the rule, but I think it makes litigation easier to argue. I know that Chase Strangio who was one of the ACLU attorneys to work on the Supreme Court case, that one this week tweeted that the HHS rule is dead because of the SupremeCcourt decision. I'd like to think that's true, but I know there's a lot of litigation to go before we get there.

Jennie: Yeah. I don't expect you administration just give up.

Katelyn: Yeah.

Jennie: You know, one of the other things that I feel like I've seen a lot of coverage on is worries about what happens when someone brings a religious challenge to this. Um, do you have those same concerns?

Katelyn: I do. I think it's possible that we see like a RFRA challenge to this, which is, and I assume you're familiar with that…

Jennie: Maybe just like the two secs…

Katelyn: The Religious Freedom Restoration Act. Yes. Thank you. Sorry. I knew I was gonna mess that up. Some of these, you get so used to the acronym, right. And it basically is designed to protect, um, mainly religious organizations from violating their, their religious conscious, you know, as it pertains to certain rules. So I do imagine we're going to see extensive RFRA challenges to this decision…but we'll take the win for now.

Jennie: Yeah. No, take away from the win for now. Yes. It’s much needed, and every little bit of excitement right now.

Katelyn: Yeah. So there's actually a Republican bill bouncing around that would basically enshrine civil rights for LGBT people while also carving wide swaths of religious exemptions throughout the bill. So I'd be interested to see, particularly the Republican controlled Senate starting going to take that up.

Jennie: Yeah. I've also seen a really big push trying to get the Equality Act passed.

Katelyn: Yes. So the Equality Act would essentially take that Supreme Court decision and extend it through other areas of life like public accommodations, like hotels or cabs or buses or rideshares, to healthcare and housing and education without religious exemptions. So I do think that we'll still see Republican objections to that, but we'll see if it comes for floor vote. I know there was, there was a big letter put up today by, uh, Tammy Baldwin’s office, that was signed by all of the democratic senators and Susan Collins asking Mitch McConnell it's premium quality, extra votes. So we're keeping an eye on that.

Jennie: So as a Wisconsinite who now lives in DC and has no Senate representation, I always claim Tammy Baldwin. And it makes me so happy to see her doing this.

Katelyn: Yes, she's fantastic.

Jennie: She's actually the first person I ever voted for, because back when I was living on campus at Madison, she was running for the house of representatives in Madison.

Katelyn: Oh, wow. That's great.

Jennie: Claim her all the way back. Yeah. So I really it's been, you know, up and down with the two things, but I, I really I'm hopeful that with the Supreme Court decision, there's going to be some momentum to keep the positive change happening around particularly trans issues.

Katelyn: Yeah. I would be surprised if we didn't see some sort of legislative fight over either of those bills. I know there were several Republicans who I said that they did not object to the decision, frankly. I think there's a lot of Republicans who don't really care about LGBT issues and are kind of tired of talking about them, but they will never admit that.

Jennie: And kind of fair. Like, I don't want to have to talk about either like, maybe just do the right thing and we wouldn't have to fight.

Katelyn: Right. And I know like, um, Senator Portman from Ohio actually praised the decision. So I don't know if he'll be the next sort of Republican domino to fall, but even Mitt Romney seemed open to, to the change, which was surprising to me. Yeah. Although, you know, I should say like the Mormon community, right? I will say the more, my community has not shied away from at least making concessions on LGBT rights since late, especially in Utah. Yeah. It, you know, and they not like pro LGBT by any means, but like Utah has had a very serious LGBT teen suicide problem for a long time and they recognize that reality. So they've decided to at least do the bare minimum. So maybe we shouldn't be that surprised a bit. Romney is softening on this.

Jennie: Yeah. No, that's, that's sad but fair. So with all of this stuff, that's happening, is there anything that listeners can do? Is there any actions that people should be taking right now?

Katelyn: Yes. Call your Senator and ask her about the Equality Act, ask them to support the it. Especially if you have a Republican Senator, especially if you live in Kentucky and can call Mitch McConnell's office.

Jennie: …and as a shameless plug, as somebody who lives in DC, while you're on the phone, ask them to support DC statehood. That would be wonderful. That's moving at the moment. So Katelyn, this was delightful. I always love talking to you about these things. It's fabulous and I'm glad it was good news because it's so weird.

Katelyn: It's so weird.

Jennie: I hope you all enjoyed my conversation with Katelyn. I always love talking to her. It was, uh, really nice to speak to her with that. We might have another bonus episode. If there are cases that have been heard, decided between now and our next regularly scheduled episode. So keeping an eye out, we'll try and get something up within a couple of days of Supreme Court cases that we have talked about on the case. everybody is doing well.

Jennie: Thanks for listening everyone. And we'll see you on our next episode of RePROS Fight Back. For more information, including show notes from this episode and previous episodes, please visit our website at reprosfightback.com. You can also find us on Facebook and Twitter at RePROS Fight Back, or on Instagram at reprosfb. If you like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.

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