On Tuesday, October 8, the U.S. Supreme Court heard arguments for three cases concerning LGBTQ workers’ rights, in what will be the biggest ruling on LGBTQ rights since marriage equality was made the law of the land in 2015.
While we will have to wait for the Court’s opinion, which will likely come down next year, what transpired has been telling.
Bathroom ObsessionSAUL LOEB/AFP via Getty Images
Justices spent much of their time focused on transgender people using public bathrooms, not only in the case revolving around gender identity, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, but also in the consolidated cases concerning sexual orientation: Bostock v. Clayton County, GA and Altitude Express, Inc. v. Zarda.
“If the objection of a transgender man transitioning to [a] woman is that he should be allowed to use, he or she, should be allowed to use the women’s bathroom, now, how do you analyze that?” asked Chief Justice John Roberts during the hearing for R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC.
ACLU Director David Cole, the lawyer representing former funeral home worker Aimee Stephens, who was fired when she came out as trans, had to remind the Court that that issue was separate.
“How you answer this case will not resolve how you answer that case,” he said.
Justices Sonya Sotomayor and Neil Gorsuch continued to pursue the line of questioning, however, with Gorsuch claiming granting LGBTQ workers their rights could result in a “massive social upheaval” if trans people are allowed to use facilities matching their gender identity.
Cole noted that this has not occurred in the states that granted transgender people such rights.
Attorney Pamela Karlan, representing two men who argue they were fired from their jobs for being gay, was also asked about the topic. She told the justices they would be better served to ask their questions of a lawyer representing a transgender individual, not someone representing gay men.
Gorsuch Seems SplitJabin Botsford - Pool/Getty Images
Five votes are needed for a majority decision for either side, and it looks like Gorsuch could be the deciding vote on these cases.
Throughout both hearings, Gorsuch asked questions and made statements that appeared to show sympathy for both sides of the argument. Despite the aforementioned stated concern over a so-called “upheaval,” he seemed to believe sex discrimination was a viable argument where an individual is fired or not hired based on whom they love; as sex is one of two factors necessarily involved, and Title VII only requires sex to be involved.
He pushed back against both Jeffrey Harris, the attorney representing the employers in Bostock v. Clayton County, GA and Altitude Express, Inc. v. Zarda, and U.S. Solicitor General Noel Francisco, who also argued on behalf of the employers, as a “friend of the court.”
The justice said he thought the text in Title VII was “close.”
Congressional Intent vs. a Textual ReadingSAUL LOEB/AFP via Getty Images
A key concern in the hearings revolved around the concepts of congressional intent versus a textual reading of the law.
As Justice Ruth Bader Ginsburg pointed out, male same-sex relations was a criminal offense at the time of the 1964 Civil Rights Law, and the American Psychiatric Association labeled homosexuality as a mental illness.
“Well, I think you read the words of the statute,” Karlan replied when asked about that concern. “And this Court has recognized again and again forms of sex discrimination that were not in Congress’s contemplation in 1964.”
Karlan offered sexual harassment as an example, saying, 1964 “were the days of Mad Men, so the idea that sexual harassment would have been reached, most courts didn’t find sexual harassment to be actionable until this Court did.”
Roberts asked her if she agreed with retired Judge Richard Posner, of the U.S. Court of Appeals for the 7th Circuit, that Title VII should be read to include sexual orientation discrimination so as to “avoid placing the entire burden of updating old statutes on the legislative branch.” Karlan said she did not, instead arguing that no updating was needed.
“I think you should read the words as they were understood then, which is men and women,” she said. “Title VII was intended to make sure that men were not disadvantaged relative to women and women were not disadvantaged relative to men.”
She further argued that treating someone differently for loving a man, be they a male or a female, fits into that definition of disadvantaging someone based on sex.
Pass the Buck to Today’s Congress?Win McNamee/Getty Images
Another point of contention for the justices was whether the decision should even fall on them, as opposed to Congress.
The fact that the Equality Act, which would create federal protections on the basis of gender identity and sexual orientation, has not been passed was raised as a potential sign of a lack of Congressional will on the issue. It passed the House earlier this year, but has been stalled by Republicans in the Senate, who have refused to bring it up for a vote. President Donald Trump has also registered his opposition to it.
Gorsuch asked Cole if it would not therefore make more sense to leave the issue up to Congress, which he rejected, pointing out that it has been dealt with in the courts of appeals for two decades, therefore setting plenty of precedent for it to be decided by the Supreme Court.
What Happens Going Forward, Win or Lose?SAUL LOEB/AFP via Getty Images
Whichever way the justices go, this ruling will have a massive impact on the lives of LGBTQ people, especially those who are most disenfranchised, such as transgender women of color. The fight for rights will necessarily continue either way.
If the Supreme Court rules against Title VII covering discrimination on the basis of sexual orientation and gender identity, it could have implications for issues beyond workers’ rights.
“We see a potential kind of domino effect of this court ruling [if the Court affirms Title VII protects LGBT people], where affirmatively we could then say, ‘Okay, sex discrimination in housing includes LGBT people, sex discrimination in health care that currently exist under federal law, that includes LGBT people,” Naomi Goldberg, of MAP, told NewNowNext ahead of Tuesday’s hearings.
Goldberg noted that even if the ruling went the way of LGBTQ workers, there would still be no federal law prohibiting discrimination in places of public accommodations, and therefore the fight to pass the Equality Act into law would remain crucial.
If the ruling goes against LGBTQ protections, and workers are left to rely on a patchwork of state and local laws, state and local elections will become even more crucial.
Annise Parker, of the LGBTQ Victory Fund, told NewNowNext that the influx of openly LGBTQ candidates into races across the country is set to continue into 2020, and that it will have a huge impact.
“It matters very much what happens at the statehouse level,” Parker said. “What we see over and over again is the importance of electing a critical mass of legislators.”