Reading the Gay Tea Leaves at the Supreme Court
Last Tuesday, the Supreme Court heard oral arguments on the
first LGBTQ rights cases to be heard by the Court since the 2015 gay marriage
case. The issue raised by two of the cases heard this week was whether
discrimination against an employee because of sexual orientation constitutes
discrimination “because of … sex” within the meaning of Title VII. The third
case raised the issue of whether Title VII prohibits discrimination against transgender
people.
Prior to
the oral argument, I had thought that the case would largely depend on Chief
Justice Roberts, who has replaced Justice Kennedy as the justice most likely to
break from his four conservative brethren. In fact, when asked about the cases
during a radio interview the evening before the oral arguments, I predicted a “split”
decision written by Roberts finding that Title VII protected transgender
employees but not gays or lesbians. After reading the transcript of the oral
argument, however, Roberts seemed too preoccupied by bathroom issues to find
for the transgender woman who was fired by a Michigan funeral home, and I now
don’t believe that he will break ranks with the conservatives.
If any of
the five conservatives was likely swayed by the arguments made on behalf of the
two gay men and transgender woman on Tuesday, it was (very surprisingly)
Justice Neal Gorsuch. Justice Gorsuch acknowledged that it is difficult to
consider sexual orientation without talking about sex. He further noted that
Title VII only requires a plaintiff to show that sex is a “contributing cause”
to the discrimination. Thus, if an employer were to discriminate against an
employee because of their sexual orientation, gender would likely be a factor
in that discrimination, which might be enough to prove discrimination. While
Justice Gorsuch also expressed concerns about a “massive social upheaval”
(i.e., concerns about bathrooms) that might follow from a decision finding that
Title VII covered gays, lesbians or transgender employees, he felt that the text
of the statute raised a “very close” question.
As I have said several times before
in this blog post, regardless of how the Court rules on these cases, there are good moral and business reasons for employers to take steps to
protect gay and lesbian employees and to develop a culture that is welcoming to
LGBTQ employees. Moreover, even if Title VII were interpreted as not applying
to sexual orientation or gender identity, there are currently 21 states (plus
the District of Columbia) that have laws that prohibit discrimination in
employment against LGBTQ employees. Finally, because we are dealing with a
statutory interpretation and not a constitutional one, if the Court interprets
Title VII narrowly, a Congress in the not-to-distant future could very easily
change the statute.
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