But I believe that there was an extended negotiation among the justices, aimed at crafting questions that would open up the case rather than skew it in the employer’s direction.
I’m reminded of something that happened a quarter-century ago when another potential landmark case, Planned Parenthood v. The petition was filed in late 1991 by abortion-rights advocates who believed that the court, following the retirements of its leading liberal justices, was about to overturn Roe v. The advocates’ calculation was that if this was going to be the outcome, it would be better for it to happen quickly and decisively, in time for the 1992 presidential election to become a referendum on the right to abortion and to awaken what polls showed to be a large silent majority favoring abortion rights.
On the basis of that question, the transgender plaintiff, Aimee Stephens, loses.
The group’s second question requires a bit more explanation, but the answer would take the court to the same place.
Both versions of the questions, from the Alliance Defending Freedom and the court, invoke the case of Price Waterhouse v. This 1989 decision expanded the concept of discrimination to hold that an employer who penalizes an employee who doesn’t conform to a stereotypical idea of the proper appearance or behavior for that person’s gender can be found to violate Title VII.
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The precedent has played an important role in litigation on behalf of gay men and lesbians, and it will play an important one in this case as well.The funeral home had a dress code for its funeral directors that required men to wear business suits and women to wear jackets and skirts.When Anthony Stephens, soon to become Aimee, informed that funeral home’s owner that part of the transition process would involve dressing and appearing as a woman before gender reassignment surgery, the owner replied, “This is not going to work out.” The owner later testified that he fired Anthony Stephens because “he was no longer going to represent himself as a man.The court’s rephrased question makes it clear that the justices read Price Waterhouse as encompassing a broad view of stereotyping, well beyond the dress code issue.That was the view taken by the United States Court of Appeals for the Sixth Circuit in its ruling on behalf of Ms. By discriminating against a transgender employee, the appeals court said, an employer is necessarily “imposing its stereotypical notions of how sexual organs and gender identity ought to align.”I have no inside information about what went on at the court during the prolonged consideration of this case.But if the court is true both to the direction of its sex-discrimination precedents and to ordinary uses of the English language, all three cases ought to be easy wins for the plaintiffs. In the Second Circuit sexual orientation case, he concurred with the majority in finding that the plaintiff, Donald Zarda, had a valid Title VII claim.“This is a straightforward case of statutory construction,” Judge Cabranes wrote.The times, the cases and the court are different now, of course. The justices did not reword the questions in either of these cases.But the Casey story shows us that the justices are capable of taking great care not to permit overly zealous advocacy to back them into a corner. The wording in both is straightforward and to the point.So they asked the court to decide a broad question: Was Roe v. The court refused to put itself to that all-or-nothing test.Instead, it rewrote the question to address specifically the constitutionality of the three Pennsylvania abortion restrictions that were at issue.