When the dust cleared Tuesday after two hours of arguments at the U.S. Supreme Court on whether anti-LGBTQ discrimination is prohibited under federal civil rights law, U.S. Associate Justice Neil Gorsuch emerged a potential — but not definite — ally for LGBTQ people.
Gorsuch, a Trump-appointed justice who considers himself a textualist, asked many questions suggesting he’s at least considering the idea that anti-LGBTQ discrimination is a form of sex discrimination, thus prohibited under Title VII of the Civil Rights Act of 1964.
If LGBTQ rights supporters eke out a victory from the Supreme Court, they may well have to thank Gorsuch on the divided court for crossing them over the finish line.
Throughout the arguments, Gorsuch made several inquiries on whether the concept of sex is inseparable from anti-LGBTQ discrimination. At one point, Gorsuch asked, “Isn’t sex also at play here?” and gave an example of an employer firing a man for being attracted to another man as an example of sex discrimination.
To be sure, Gorsuch also asked questions about whether employers could keep sex-segregated bathrooms under an LGBTQ-inclusive Title VII.
Gorsuch poised one question in particular to David Cole, national legal director for the American Civil Liberties Union, that may best offer a glimpse into the justice’s internal views.
“Assume for a moment that I’m with you on the textual argument,” Gorsuch said. “Should the court be concerned about the massive social upheaval that would ensue?”
(With respect to transgender protections, Cole said there would be no upheaval, citing decades of case law affirming anti-trans discrimination is a form of sex discrimination.)
The Supreme Court agreed to adjudicate the litigation as a result of taking up a trio of consolidated cases seeking clarification on whether Title VII covers anti-LGBTQ discrimination.
The cases are Zarda v. Altitude Express and Bostock v. Clayton County, which seeks resolution on whether anti-gay discrimination is illegal under Title VII, and EEOC v. Harris Funeral Homes, which seeks resolution on whether anti-trans discrimination is illegal under the law. The metro Atlanta man at the center of the Bostock v. Clayton County case – Gerald Bostock (second photo) – told Project Q Atlanta that after joining a gay sports league in 2013, he was fired from the "job I loved."
After the arguments Tuesday, police arrested more than 130 LGBTQ protesters outside the Supreme Court building.
Cases could impact LGBT people at work, home
According to the Williams Institute at the University of California, Los Angeles, non-discrimination protections for an estimated 4.1 million LGBTQ people in states without LGBTQ civil rights are at stake in the upcoming decision.
Although Title VII relates specifically to employment, any decision the Supreme Court reaches will impact other laws barring sex discrimination, such as the Fair Housing Act, the Affordable Care Act and Title IX of the Education Amendments of 1972. Therefore, the decision will impact LGBTQ people not just in the workplace, but also housing, health care and education.
Gorsuch was one of three justices who were carefully under watch during oral arguments as potential swing votes on whether anti-LGBTQ discrimination is prohibited under Title VII.
Another was Chief Justice John Roberts, who entertained the idea of anti-gay discrimination being a form of sex discrimination during the 2015 marriage equality arguments.
But four years later in the Title VII cases, Roberts was unequivocally on the side of anti-LGBTQ discrimination not being a form of sex discrimination.
Another justice of interest was Brett Kavanaugh, but the newly confirmed Trump appointee kept his cards exceedingly close to his vest.
Kavanaugh asked only one question: A legal technical inquiry on the difference between the plain and ordinary meaning of Title VII.
The oral arguments on the two issues consisted of two hours with discussion on sexual-orientation discrimination in the first hour and anti-transgender discrimination in the second.
But the discussion on both subjects often sloshed over both sides. For example, the question of transgender people using bathrooms came during the sexual orientation portion, and John Bursch, a lawyer with Alliance Defending Freedom, brought up the idea of religious institutions being able to terminate employees who enter into a same-sex marriage.
It’s certainly possible the Supreme Court could reach one decision with respect to transgender employees, and another with respect to gay, lesbian and bisexual workers (especially considering the case law among lower courts for transgender people is significantly more developed). But justices gave no indication whatsoever that they’d reach two separate decisions.
Amplifying Roberts’ view that LGBTQ people aren’t covered under Title VII was U.S. Associate Justice Samuel Alito, who asked questions about congressional intent in 1964 and bathroom use.
“The point is that discrimination on the basis of sex in the sense that Congress understood it in 1964 is a different concept from discrimination on the basis of sexual orientation,” Alito said at one point.
Alito poses bizarre hypothetical
Alito repeatedly asked about a bizarre hypothetical situation in which an employer is aware of the sexual orientation of a job applicant and refuses to hire that person without knowing his or her gender.
“Let’s imagine that the decision-maker in a particular case is behind the veil of ignorance and the subordinate who has reviewed the candidates for a position says, ‘I’m going to tell you two things about this candidate. This is the very best candidate for the job, and this candidate is attracted to members of the same sex,'” Alito said. “And the employer says, ‘OK, I’m not going to hire this person for that reason.'”
To Alito, that suggested anti-gay discrimination isn’t necessarily a form of sex discrimination.
Representing the gay workers before the court was Pamela Karlan, the director of the Supreme Court Litigation Clinic at Stanford Law School.
Story by Chris Johnson, top photo by Michael Key; both courtesy Washington Blade and used with permission