What Gorsuch Giveth…

October 10, 2019

…Gorsuch will almost certainly taketh away.

This week, the Supreme Court heard oral arguments in a series of cases all focused on one particular issue – does Title VII of the federal Civil Rights Act of 1964 prohibit employment discrimination against the LGBT community?

Like many cases that come before the Supreme Court bench, there’s a split amongst the different federal circuit courts of appeal over this question. The argument in favor, that such discrimination is already illegal, is a compelling one not least in its simplicity. Title VII bans almost all employment discrimination where that discrimination is “because of such individual’s race, color, religion, sex, or national origin.”

Focusing on the category of sex, here, we can see that if a woman is fired from her position because she is married to another woman, whereas a man would not be fired for being married to a woman, then the termination is the result of the woman’s sex. She is treated differently for not being a man. Similarly, if an employer permits women to wear skirts to work, and refuses to promote an individual who the employer sees as a man, because that individual chooses to wear skirts to work, that individual is being discriminated against for not being what the employer defines as “a woman.”

“But wait,” many people say. “There’s no way in 1964 Congress intended to protect gays or transgender folk.” And they aren’t wrong. In 1964 homosexual relations were criminal in much of the country – Illinois in 1961 was the first state to decriminalize such sexual activity by repealing its sodomy laws. But lack of intent doesn’t matter to textualists such as Justice Neil Gorsuch. To them, all we need to interpret a law is the law itself. The words passed by Congress, and their plain meaning, is what defines the scope of the law.

Under that analysis, it’s very tough to argue that firing a lesbian, or a transgender person, isn’t discrimination based on their sex. The Supreme Court has long held that gender stereotyping is covered by Title VII. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), refusing to make a woman partner in an accounting firm because of her lack of femininity was held to violate the law. Requiring the plaintiff to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry,” as her supervisor advised her, violated the law. Men would not be required to act in that fashion to be promoted. There is nothing in the text of the law that suggests the same analysis should not apply to men and women simply because of their sexual orientation or gender identity. The law is the law – you can’t make hiring and firing decisions based on stereotypes of femininity and masculinity.

Many analysts pouring over the transcript of oral argument are finding evidence in Gorsuch’s questioning that he has seen this. Let’s assume that Gorsuch acts with intellectual integrity (which, unfortunately, is a pretty major assumption as textualists have a habit of finding clear text to be suddenly obscure when it suits their purpose and prejudice) and finds that Title VII as written does cover employment discrimination against members of the LGBT community? While that would be categorically “a good thing,” it is important to remember that there’s a series of factors which will limit the success.

First, in a majority made up of Ginsburg, Sotomayor, Kagan, Breyer, and Gorsuch on this issue, it seems very likely the opinion would be written by Gorsuch. That in and of itself seems likely to limit the impact of the case.

More important, however, is Gorsuch’s position on religious exemptions. Gorsuch, as part of a conservative, religious majority on the Supreme Court, is set to rule in multiple cases that a private business owner’s dislike of LGBT people, provided it is based on religion, is sufficient for them to gain an exemption to whole swathes of civil rights laws. A baker who feels they cannot as a result of their religious beliefs bake a cake for a gay couple is likely to also feel their beliefs threatened by hiring, or working with a gay man. If simply claiming a religious objection is sufficient to be allowed to discriminate against the LGBT community, then there is a gaping hole already torn in Title VII. It no longer matters what discrimination Title VII forbids if your employer can simply say that Title VII no longer applies to them because of God.

Finally, a finding that Title VII prohibits employment discrimination based on sexual orientation and gender identity is a finding based on statutory interpretation, not on the notion of a constitutional right. There would be nothing stopping Congress changing the wording of Title VII to explicitly exclude such discrimination from its prohibitions. While I am reasonably optimistic that a law explicitly permitting discrimination against gay, lesbian, and bisexual people would not pass through the House and Senate, I am much less so about a law explicitly targeting transgender individuals.

Winning these cases is important. It’s frankly ridiculous that in 2019 we are still arguing about whether an employer can fire you because of the person you love, some preconceived standard of masculinity or femininity, or a gender identity other than what is assigned at birth. But as long as we allow people’s religious beliefs to exempt them from obeying the same laws the rest of us may follow, attempts to secure LGBT equality are going to be significantly hamstrung. As long as jurists like Neil Gorsuch see private religious belief as a trump card over public responsibilities, we are going to be limited in the protection that federal law can provide.

(Official White House Photo by Shealah Craighead)