America’s “Religious” Right is Neither
And They Have Conned Others Into Going Against Their Own Interests
On Tuesday, October 8, the U.S. Supreme Court will hear arguments in the R.G. & G.R. Harris Funeral Homes v. EEOC & Aimee Stephens case. The case centers around Aimee Stephens, who had worked as a funeral director in Michigan until she came out as transgender and was summarily fired.
Her boss allegedly saw it as a dress code issue: in his eyes she would still be a man and it would be wrong for her to come to work dressed as a woman. Tortured logic, to be sure, all resting on his belief that transgender people don’t exist.
Enter “Religious” Right Opportunists
Because Stephens’ employer claimed his bigotry came from some deep-seated religious belief — and because it went along with the agenda of conservative Christian groups — organizations like Alliance Defending Freedom (ADF) came out of the woodwork and defended the employer in court.
The EEOC took up her case and sued the funeral home on her behalf. Stephens lost at the local level (the conservative attitudes in Michigan were a big part of the reason I moved out of the state several years ago), but won in the Sixth U.S. Circuit. Perhaps it should not be a surprise she won in the Sixth Circuit, as this court also set a precedent several years ago with Price Waterhouse v. Hopkins.
In that case, a woman was passed over for promotion and salary increases for not dressing “feminine” enough. The court ruled against her employer, saying that someone cannot be discriminated against for dressing in a gender non conforming way at work. It had been the law of the land — at least for that part of the country — ever since.
Until now. At the same time that Stephens’s case was working it’s way through the courts, other cases were coming through in other parts of the country, mostly concerning sexual orientation. The circuits were split on whether Title VII sexual orientation and gender identity. (And by split, I mean one circuit reached the opposite conclusion of the other three). ADF saw their chance and asked SCOTUS on behalf of the funeral home to hear their case.
Last spring, SCOTUS agreed to hear the case. It will be consolidated with another case concerning someone who was fired for their sexual orientation.
Why Should We Be Scared of the SCOTUS Ruling In The Stephens Case?
You may have noticed that, since 2016, the balance of SCOTUS has veered to the right. Gorsuch was appointed in Scalia’s place, preserving the original balance (sort of), with four progressive justices, four dyed-in-the-wool conservatives, and one swing vote (Kennedy). Then Kennedy retired and was replaced by Kavanaugh, whose main qualifications for the job seem to be a guarantee that he will rule in lock step with the conservatives (especially on abortion).
So, the outlook for victory for Stephens is not good based on how each justice is predisposed to vote. Is there a chance the justices will put clearly-thought-out jurisprudence ahead of ideology? I sure hope so.
I guess a lot will depend on the arguments that get made Tuesday and the logic of those arguments. At least I hope they consider the logic of the arguments and do not make up their minds ahead of time. I’m not convinced they will operate in good faith like that, but I have my fingers crossed.
Why Should Anyone Who Is Not Trans Care About the Stephens Case?
“That’s great,” you say. “But I’m not LGBT. What should I care how SCOTUS rules?”
I know, a lot of cisgender and/or heterosexual people will answer that question with a very cogent, “DUH! Because it is the right thing to do.” But just in case, let me remind you of a few things.
First, notice that this case is not just about gender identity, but also sexual orientation. It is bound up with another case concerning sexual orientation, so if the ruling goes against Stephens, it also means that lesbians, gays, bisexuals, and other sexual minorities can be discriminated against as well. Since much of the U.S. population already assumes that LGBT people already have those rights, a ruling against Stephens will come as a shock to a lot of people.
Also, a ruling against Stephens will be a reversal of cases like Price Waterhouse v. Hopkins, that said that gender stereotypes had no place in determining what kind of clothing is appropriate business attire. If Aimee Stephens can be fired for wearing a dress, then a cis woman can be fired for wearing pants, sports coats, and a tie.
Incidentally, this is one place where the logic of Stephens’s opponents breaks down. If Aimee is, as they claim, actually a man, then the precedent that someone can be fired for dressing in a gender nonconforming way can and will be used against cisgender women at some point. Possibly some of the same cisgender women who are speaking out against Stephens. More on that in a moment.
What Does the Religious Right Have to Do With This (And What Makes Them So Dangerous)?
The connection with right-wing Christianity is pretty easy to make here. ADF, the law group defending Stephens’s employer, only takes on cases that they feel revolve around “religious freedom.” Most of the time that really translates to freedom to discriminate, especially against the LGBT. They have been involved in numerous cases involving LGBT issues, and this is far from their first rodeo where transgender rights are concerned.
They have defended “concerned parents” against school districts and trans students themselves in cases where school districts allowed trans students their rights. They have argued against lesbian, gay, and bisexual rights as well. Simply put, they don’t like LGBT people and they will do whatever they can to make discrimination against these groups legal.
In the Stephens case, other right-wing Christian groups have filed amicus briefs against Stephens. The current presidential administration — blatantly beholden to the religious right — withdrew support for the case long ago. Stephens’s side is now being argued by an ACLU attorney, Chase Strangio.
In short, it’s no secret that right-wing groups — especially those claiming to be religious in nature — are out to discriminate against LGBTQIA+ folx as much as possible. These were some of the same people who argued (and thankfully lost) against same-sex marriage in Obergerfell v. Hodges. Make no mistake: these groups are still out for blood, and see this case as a good opportunity.
And if they can take away LGBTQIA+ rights, what makes us think they will stop there? Anyone who is not Christian, or who is not white, anyone who does not think, act, or look exactly like these people is next on the list for discrimination.
Enter the Dupes
Probably the most insidious part — for me at least — is how easily these quasi-religious right wing organizations have gotten others to sign on to their agenda, often to the detriment of their own interests.
Exhibit 1: the U.S. Government
Yes, the current occupant of the White House knows how much conservative religion helped him gain office. These so-called religious paragons have even hypocritically said that Trump deserves a “mulligan” for all the times he has broken one of the Ten Commandments. Honestly, I’m not sure there is one he has not broken.
Put aside the hypocrisy of religious leaders endorsing the Sinner in Chief, the “president” has pulled the EEOC off the case and his administration has thrown in their lot with those who would see Aimee Stephens lose her rights. Yes, the administration has submitted an amicus brief against Stephens, too.
Byt what happens when Trump is no longer in power? Will all the flip flops made by EEOC and others be all the more problematic under a different administration? And yes, I recognize that I am ascribing logic and long-term thinking to a group of individuals who have not demonstrated an ability to do such thinking. But I thought I would point out that this is just one more way the administration is — ultimately — shooting themselves in the foot. I guess love of power beating out their own self interest should not surprise me with these folks.
Exhibit 2: “Gender Critical” Lesbians and “Feminists”
And talking about going against your own interests. Remember when I said that part of this case involved whether someone who is lesbian, gay, or bisexual can be fired or otherwise discriminated against on the job? It might surprise you to learn, then, that there are lesbians — a small minority of all lesbians and/or feminists, to be sure — who have written amicus briefs against Stephens’s position. Right there with all the religious groups who say homosexuality is a sin, lie briefs from lesbians speaking out against LGBT rights.
Can you guess why that is? Of course, it’s opposition to the “T” in LGBT. These people hate trans folx so much (OK, let’s be honest — they mostly just hate trans women) that they are willing to fight against their own interests.
They know that a decision in this case will affect lesbian, gay, bisexual people, and other sexual minorities, but they are more upset at the possibility of trans people getting equal rights. I mean, let’s face it: the right to not be discriminated on the job and to not be fired is a pretty basic right.
If a lesbian were fired for her homosexuality, that would be a huge miscarriage of justice. If Stephens loses this case, that is a complete possibility. If you can discriminate against someone on the basis of sexuality or gender identity — as is being decided here — then there is someone who is going to do it.
Most of those same people also see themselves as feminists. They see transgender people — especially transgender women — as being an existential threat to feminism. So much of a threat, in fact, that they are willing to give up the rights they and so many have fought for over the years.
Yes, these people tend to believe that Aimee Stephens isn’t a woman. I, of course, don’t agree, but let’s say for a moment that they are right. That means Stephens was fired for wanting to wear clothes generally associated with the opposite gender (I know there are more than two genders, but I am just laying out the “logic” of their argument).
You know who else was discriminated against on the job for wearing clothes of the “opposite” gender? Ann Hopkins, the plaintiff in Price Waterhouse v. Hopkins. A ruling against Stephens will also be a reversal of Ann Hopkins’s case. In other words, a defeat for Stephens can only result in imposition of stricter expectations for gender presentation. No, Aimee would not be able to wear a dress, but they and their sisters would not be able to wear pants in the work place either.
“Who Cares If There Are Dire Consequences, As Long As I Get To Hate People?”
If the Trump administration has let love of power cloud their judgement and go against what would ultimately be their best interests, “Gender Critical Feminists” have allowed hate to cloud theirs.
They will claim they do not “Hate” trans folx as such, just that they find us to be a threat. The problem with that assertion is that they are working hard to erase the rights of trans people everywhere (not just Aimee Stephens). If they did not hate us, they would not be working so hard to take away our rights.
Especially since they are essentially cutting off their nose to spite their face. A loss for Stephens is also a loss for working LGB people everywhere. And it’s a loss for feminists who do not believe someone should be fired or held back from promotion because they do not dress “feminine” enough.
Black Magic? I Wonder.
So how did the “religious right” — who, as we have seen with their support of the present administration and others is neither right nor religious — convince presumably bright, clear-thinking people to go against their best interests?
As I mentioned, a lot of this has to do with what these others care about more than doing the right thing. In the case of the U.S. government, it is power, pure and simple.
In the case of this small group of lesbians and “feminists,” it is animosity. Some would even call it hate. The thing is, trans people are only seen as a threat by a small minority. In fact, there are probably more right-wing cis men decrying trans folx (especially the whole “trans woman in the bathroom” thing) than cisgender women. In fact, I have been putting the word feminist in quotes when referring to the anti-trans groups because most feminists believe trans women are women and trans men are men, and do not feel feminism should exclude trans people.
It’s interesting these are so-called “Christian” groups who are using these tactics. In Christian mythology there was someone who often would promise someone something they really wanted and cared about in exchange for giving up their principles and sense of right and wrong.
That guy’s name, of course, was Satan. Now, I don’t believe in Satan (or much of the rest of the Bible, for that matter), but I do believe someone can make a deal with the devil. Let there be no doubt that those who have thrown in their lot with ADF and other right-wing groups have done just that.
So it’s not really “black magic” — I don’t think “black” vs. “white” magic exists, really; most witches use magic for healing and generally making the world a better place. Yes, I believe magick and witchcraft exist. No, I am not Wiccan, but many close friends and family are.
In the Stephens case, though, the answers are much more secular. People’s basest instincts — for hate, for power — are taking precedent over their principles.
I can only hope that enough of the SCOTUS bench sees their way clear to listen to the principles of equality and fairness to ultimately rule on the side of justice.
We will not find out until next year, when the verdict is announced.