The Title VII cases that are now under consideration by the U.S. Supreme Court seem poised to yield some of the biggest decisions of the court’s current term – and those typically are handed down as terms come to a close in late June. Obergefell v. Hodges was five years ago and Lawrence v. Texas was a dozen years before that – but Romer v. Evans was out before Memorial Day in 1996.
Irrespective of how the Title VII cases are decided, if there are folks within the cloistered confines of the high court who have a sick sense of humor, the decisions will come down even earlier than that (and, let’s face it, all nine justices likely have decided how they’re going to vote; its currently all over but the writing), the decisions will come down on Leap Day.
Twenty years ago, on February 29th, a world which had yet to see a trans-inclusive federal bill and which had only seen one state view trans people to be equal to LGBs when enacting a gay rights statute was caught off guard (pun pre-intended) by a decision from a panel of the Ninth Circuit Court of Appeals.
The case was Schwenk v. Hartford.
It was a prison rights case rather than a Title VII case, but the judge who authored the decision, Stephen Reinhardt, clearly was aware that it had major implications for employment law.
Crystal Schwenk, a trans woman inmate in Washington state, sued over an alleged attempt by prison guard Robert Mitchell to rape her. Her claims were based on Section 1983 (the ‘under color of law’ Reconstruction Era Civil Rights Act), the Eighth Amendment, and the Gender Motivated Violence Act.
The case was up on appeal because the lower court had ruled against Mitchell’s effort to get the case thrown out.
We’ll get to the ugliness first. Mitchell argued that he is entitled to qualified immunity because the allegations amounted only to sexual harassment.
True, there is a legal difference between sexual harassment and sexual assault. Both are horrific and disgusting – but there is a difference.
According to Schwenk (and bear in mind that, at the stage of litigation where decisions are made as to whether a trial should even happen, courts are to act as if all such claims are true – even if they might later be proven untrue), Mitchell’s conduct began with “winking, performing explicit actions imitating oral sex, making obscene and threatening comments, watching [Schwenk] in the shower while ‘grinding’ his hand on his crotch area, and repeatedly demanding that [Schwenk] engage in sexual acts with him.”
After an incident in which she attempted to walk away after refusing to have sex with him, “Mitchell grabbed her and groped her buttocks.” In another incident, she alleged Mitchell “unzipped his pants, pulled out his penis, and again demanded that Schwenk perform oral sex.”
Another allegation was of Mitchell closing the door to her cell, grabbing her, turning her around forcibly, pushing her against the bars, and grinding his exposed penis into her buttocks.
Now, as a state employee, Mitchell was being defended by the State of Washington, the sovereign entity whose authority to prosecute crimes allowed it to have Crystal Schwenk incarcerated. So, as you are reading the following two sentences from the Ninth Circuit’s opinion, substitute “State of Washington” for “Mitchell.”
Mitchell asserts that the acts of which he was accused do not satisfy the statutory definition of a crime of violence.
Mitchell next asserts that Schwenk’s allegations constitute at worst ‘same-sex sexual harassment’ and not sexual assault.
Rarely have I ever found it appropriate to blow right by misgendering when analyzing an incident where misgendering is but one part – but characterizing grinding an exposed penis into someone’s buttocks as something less than (at the very least attempted) sexual assault does the trick.
This was the point on which Schwenk prevailed at the Ninth Circuit.
She had also sued under the GMVA, part of the Violence Against Women Act. Reinhart rejected Mitchell’s assertion that she’d not made out a claim but felt compelled to agree that the law on the topic had not yet been “clearly established.” Consequently, Schwenk lost on the issue more directly related to trans rights – but Reinhart made sure that a message was sent.
Mitchell (and the State of Washington) argued that Mitchell’s conduct was not about gender but about transsexuality which, according to Mitchell (and the State of Washington) was not an element of gender, but rather “gender dysphoria, a psychiatric illness.”
To make the determination of whether the GMVA had any chance of applying, Reinhardt looked to other federal law – in particular, the “sex” provision of Title VII.
References to the litany of old anti-trans Title VII decisions (including the Ninth Circuit’s 1977 Holloway v. Arthur Andersen) could have been a signal that the analysis was going to get ugly – but it didn’t: “The initial judicial approach taken in cases such as Holloway has been overruled by the logic and language of Price Waterhouse.”
Price Waterhouse v. Hopkins, that is – the same case that the U.S. Supreme Court is undoubtedly paying much attention to right now.
“Here,” Reinhardt wrote, “it is undisputed that Mitchell knew that Schwenk considered herself a transsexual and that she planned to seek sex reassignment surgery in the future. Schwenk testified that Mitchell’s demands for sex began only after he discovered that she considered herself female and that they escalated and included commentary about her transsexuality.
“Moreover, Schwenk testified that her appearance and mannerisms were very feminine and that Mitchell was aware of these characteristics. In fact, Mitchell offered to bring her make-up and other ‘girl stuff’ from outside the prison in order to enhance the femininity of her appearance.”
“Thus,” he continued, “the evidence offered by Schwenk tends to show that Mitchell’s actions were motivated, at least in part, by Schwenk’s gender – in this case, by her assumption of a feminine rather than a typically masculine appearance or demeanor.”
The world should have changed after Schwenk v. Hartford – and it did.
But not much.
Some other federal courts began employing reasoning similar to Reinhardt’s; Rosa v. Park West Bank followed quickly in June, followed by others – eventually leading to Mia Macy’s case, which led the EEOC to rule that, indeed, the old transphobic Title VII reasoning was dead and the Price Waterhouse-based reasoning should prevail.
Whether on Feb. 29th or on June 30th, let’s hope the decision is as good as the one that brightened the collective trans day on Leap Day of 2000.