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Analysis Law and Policy

After Two Hours of Arguments, Five Votes Could Decide the Future of LGBTQ Rights

Jessica Mason Pieklo

The conservative wing of the Roberts Court appears ready to take a sledgehammer to LGBTQ rights—assuming they can keep Justice Neil Gorsuch on board. 

The U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges represented a significant, but potentially fleeting, shift in LGBTQ rights. Led by conservative Justice Anthony Kennedy, Obergefell recognized the indignity LGBTQ people experience when the law treats them differently simply for who they are. Despite being a fundamentally conservative opinion grounded in traditional notions of partnership and family, Obergefell was revolutionary for its jurisprudential embrace of the humanity of LGBTQ people.

The legal landscape looks very different for LGBTQ rights four years later. The Trump administration has taken a sledgehammer to the slow and steady progress made during the Obama administration of recognizing the promise of Obergefell and recognizing LGBTQ rights. And on Tuesday during oral arguments for the three cases that ask whether federal employment discrimination law protects LGBTQ employees, the conservative wing of the Roberts Court appeared ready to do the same—assuming they can keep Justice Neil Gorsuch on board. 

The first two cases on the Roberts Court’s docket revolved around the question of whether prohibitions on discrimination “on the basis of sex” under Title VII of the Civil Rights Act of 1964 include discrimination on the basis of a person’s sexual orientation. The cases were combined under Bostock v. Clayton County, Georgia. In Bostock, the plaintiff alleges he was fired from his job as a child welfare services coordinator for a Georgia county’s juvenile court system after his employer found out he is gay. In May 2018, a three-judge panel from the U.S. Court of Appeals for the 11th Circuit ruled in an unpublished per curiam decision that Bostock couldn’t sue his employer because Title VII doesn’t ban discrimination based on sexual orientation. Bostock wants the Supreme Court to reverse the 11th Circuit’s decision, which his attorneys argue is wrong and in conflict with the majority of recent federal court decisions that do recognize sexual orientation discrimination under Title VII. 

The third case before the Court seeks to answer whether Title VII applies to claims of discrimination based on gender identity and transgender status. In R.G & G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, the Sixth Circuit Court of Appeals ruled on behalf of Aimee Stephens, a Michigan funeral director who was fired once she began transitioning at work.

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The Roberts Court had previously avoided answering the question of whether discrimination on the basis of sexual orientation is discrimination “because of sex” under Title VII, but during arguments Tuesday showed no such reluctance. This despite the fact that the Roberts Court announced last week it was going to try something new this term.

Counsel before the Court now get to make their arguments, uninterrupted, for approximately two minutes before the justices jump in with their questions. That meant that Stanford law professor and attorney Pamela Karlan, who argued on behalf of the employees in these cases, had the opportunity to clearly set forth why “firing a man who dates a man” is discrimination because of sex. It’s a startling difference to hear the attorneys be able to frame their case before the Court without immediate interruption. Whether it changes the outcome remains to be seen, but Karlan did her best to stay focused on the argument that sexual orientation discrimination is by its nature discrimination because of sex.

Justice Ruth Bader Ginsburg had the first question for Karlan and asked about the “original public understanding” of sex discrimination when Title VII first passed. What role, if any, should that original understanding play in how the justices resolve the dispute before them, Ginsburg pressed? None, Karlan answered. Just look to the words of the statute, Karlan insisted. When Title VII passed in 1964 it was “the days of Mad Men,” she said, where sexual harassment, now a commonly understood form of sex discrimination under Title VII, was not recognized.

Ginsburg’s question was pointed for a reason. The heart of the dispute of these cases is a “textual” dispute—a fight over the meaning of the text “because of sex” in the statute. Conservatives, including Solicitor General Noel Francisco who argued in defense of the employers in these cases, insist the text of the statute doesn’t support finding that sexual orientation or gender identity claims are covered in part because of the “original public understanding” of the harm Congress was trying to remedy when it first passed Title VII. That original public meaning of Title VII, Francisco and the other conservative attorneys representing the employers said, only prohibits employers from treating one sex better or worse than the other. Nothing more, nothing less.

It’s a deceptively simple argument that has dangerous consequences. As federal courts recognized sexual orientation discrimination over the years, they did so by building on the idea that sex-stereotyping can be a form of sex discrimination covered under Title VII. The Court reaffirmed that principle in the 1998 case, Oncale v. Sundowner Offshore Services, authored by Justice Antonin Scalia.

In Oncale, a male employee said he was “forcibly subjected to sex-related humiliating actions” by his male co-workers, including assault and rape threats, for not being “macho” enough. Oncale is a case study in same-sex harassment. In finding that Title VII covered instances of same-sex harassment despite the text of Title VII being arguable silent on the topic, Justice Scalia wrote: “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 

In other words, according to Justice Scalia in Oncale, Title VII demands courts go beyond the original public understanding of the law to cover those “reasonably comparable evils” of sexual orientation and gender identity discrimination. According to Scalia and the majority in Oncale, it doesn’t matter what the exact words of Title VII say or even what the lawmakers at the time thought they were covering. What matters is that the language of Title VII itself is expansive enough to contemplate social change. And Title VII does this by recognizing that firing an employee because of their failure to conform to stereotypical notions of sex—whether because of sexual orientation or gender identity—are by their definition sex discrimination.

Congress doesn’t need to speak now on that question. They did so in 1964 by passing Title VII. “It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” the Sixth Circuit states in Harris. “Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.”

On Tuesday, Solicitor General Francisco took the opposite view and argued that the only way to make Title VII cover gender identity and sexual orientation discrimination is for Congress to amend the law to explicitly say that it does. That’s an argument that Justices Samuel Alito and Chief Justice Roberts latched onto immediately. Roberts noted that the states that had passed their own version of Title VII had explicitly stated protections for sexual orientation discrimination, as well as exemptions in place for religious objectors. Justice Alito even took the end of Karlan’s time not to let her answer a question, but to accuse the employees of trying to change the meaning of Title VII outright.

If Justice Roberts is true to precedent, then next summer the Court will rule that Title VII covers both sexual orientation discrimination and gender identity discrimination, and Roberts will join the majority in doing so. There is no other conclusion that remains both true to the text of the statute and the cases that followed. But Roberts is a conservative ideologue and not a scholar of precedent. He also laid the groundwork for reading sexual orientation and gender discrimination protections out of Title VII in Obergefell. Reading his dissent from the bench, Roberts was clearly angry about the outcome of the case. He accused the majority of acting out of political motivation, not legal reasoning, and suggested that those celebrating the decision were doing so simply because their side had won.

“[T]his Court is not a legislature,” Roberts wrote in his dissent in Obergefell. “The majority’s decision is an act of will, not legal judgment.” 

Conservatives picked up Roberts’ mantra of “this Court is not a legislature” over and over again on Tuesday, but the refrain wasn’t directed to Roberts, who is all but certain to vote against LGBTQ rights in the workplace. It was directed at Justice Gorsuch, who is likely to side with conservatives in these cases. But on Tuesday, he really tried to stay true to his textualist roots. At one point, he described the cases a close call from a textualist perspective and suggested to David Cole, attorney for the American Civil Liberties Union (ACLU) who represents Aimee Stephens in the case, that he might even be on his clients’ side. But, Gorsuch said, he was worried about the “social upheaval” a ruling from the Court would send for employees in these cases. “[F]ederal courts of appeals have been recognizing that discrimination against transgender people is discrimination for 20 years. There’s been no upheaval,” Cole said.

The Court could split the difference in the cases and find Title VII protects sexual orientation discrimination but not gender identity discrimination, or vice versa. But if Justice Gorsuch remains true to his textualism, then he could very well be the fifth vote to find that LGBTQ people are protected under Title VII. I think that’s a big “if,” though, given his hand-wringing about social upheaval that would come from the Court ruling on behalf of LGBTQ employees and an overall history of voting against civil rights.

I think it is more likely that Justice Gorsuch will rule against LGBTQ rights and write an opinion saying how that conclusion is an exercise in “judicial modesty” rather than a gutting of civil rights protections for the millions of LGBTQ people in this country. That decision would not only be disappointing, but it would also be intellectually dishonest and leave millions of employees looking to a patchwork of state laws for protections against employment discrimination, and advocates pressing Congress to pass affirmative federal protections as well.

We’ll know either way later next year when the Court finally rules in these cases.

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