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On Monday the Supreme Court ruled that workers cannot be fired for being gay or transgender in a blockbuster win for members of the LGBTQ community. While employees in about half the country were already protected by local laws prohibiting discrimination based on sexual orientation or gender identity, there was no federal law explicitly barring LGBTQ workers from being fired on that basis. The 6-3 holding, authored by Justice Neil Gorsuch, a conservative appointed by President Donald Trump, is a landmark development in the history of gay rights in the United States.
Additional background: “The case concerned Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex,” Adam Liptak writes for The New York Times. “The question for the justices was whether that last prohibition — discrimination ‘because of sex’— applies to many millions of gay and transgender workers.” This decision was the Supreme Court’s first on LGBTQ rights since Justice Anthony M. Kennedy retired in 2018. Kennedy wrote majority opinions in prior gay rights decisions, but there is one important difference between then and now: those decisions were grounded in constitutional law whereas the new cases concerned statutory interpretation. Here were the arguments from both sides:
On the Right: Because this latest decision concerned statutory interpretation, the Trump administration and lawyers for the employers argued that if Congress wanted to protect gay and transgender workers it would need to pass a new law. The reasoning was that in 1964, common understanding of sex discrimination was bias against women or men and did not encompass discrimination based on sexual orientation and gender identity. As it relates to the recent Supreme Court decision, Justices Brett Kavanaugh and Samuel Alito Jr. were the three dissenters. In a nutshell, the conservative Justices view the ruling as a departure from strict constructionist ideology, championed by Gorsuch’s predecessor Justice Antonin Scalia. In his 54-page dissent, Justice Alito wrote, “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated — the theory that courts should ‘update’ old statues so that they better reflect the current values of society.” Ben Shapiro of The Daily Wire adds that yesterday’s ruling was, “…simply a bad, outcome-driven legal decision. And it throws religious liberty, free speech, and employment law into complete turmoil.” Lastly, Carrie Severino, president of the Judicial Crisis Network, echoed the sentiments above, tweeting that the ruling “was the hijacking of textualism. You can’t redefine the meaning of words themselves and still be doing textualism. This is an ominous sign for anyone concerned about the future of representative democracy.”
On the Left: Lawyers for the gay and transgender workers responded that discrimination against employees based on sexual orientation or transgender status must as a matter of logic take account of sex. Justice Neil Gorsuch who authored the decision, explained that, “In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Those are the “5 simple sentences” that are “clear, straightforward, and correct” according to left-leaning outlet Vox. Mark Joseph Stern of Slate adds that, “It is a victory for the country because, in one fell swoop, the court granted vital protections to LGBTQ people in every state, making the United States a fairer, freer place. It is a victory for the court because the decision is an encouraging sign that the justices can still practice neutral and responsible jurisprudence without partisan influence.” Kristen Browde, co-chair of the National Trans Bar Association, said in a statement, “This decision sends an unambiguous message that equal protection under the law applies to all and that an employee’s failure to adhere to an employer’s gender stereotype is not a licence to discriminate.” Sarah Kate Ellis, the president and CEO of GLAAD, a pro-LGBTQ group, said the decision “affirms what shouldn’t have even been a debate: LGBTQ Americans should be able to work without fear of losing jobs because of who they are.”
Flag This: Even as the court has grown more conservative, yesterday’s ruling extends more than a decade of advances for gay-rights advocates at the Supreme Court. This includes the 2015 decision that legalized same-sex marriage. The AP notes the “outcome is expected to have a big impact for the estimated 8.1 million LGBTQ workers across the country,” but that “Monday’s decision is not likely to be the court’s last word on a host of issues revolving around LGBTQ rights.” For example, “Lawsuits are pending over transgender athletes’ participation in school sporting events, and courts also are dealing with cases about sex-segregated bathrooms and locker rooms.” POLITICO also notes that “LGBTQ individuals in many states still have no legal protection against other forms of discrimination, such as housing or public accommodations, although the new decision could bolster efforts to win such protection in the courts or in Congress.” Lastly, The Daily Wire points out that, “The court did not specifically address whether religious organizations, many of whom prohibit openly gay individuals from serving as employees, will receive a carve-out exception to the ruling, or whether transgender individuals who have not had gender-reassignment surgery can be considered members of the opposite sex — an issue at the forefront of women’s athletics.” Keep an eye out for these issues to come before the Supreme Court as early as next term as there are cases currently pending in lower courts on both issues.