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Reading the Gay Tea Leaves at the Supreme Court

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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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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.