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Supreme Court analysis: Justices grapple with 'sex' in Title VII cases

by Lisa Keen

Justices on the U.S. Supreme Court will decide two LGBT cases this term. Photo: Courtesy Washington Post
Justices on the U.S. Supreme Court will decide two LGBT cases this term. Photo: Courtesy Washington Post  

U.S. Supreme Court observers are more reluctant than usual to try and predict how the court might come down on the always hot-button issue of LGBT rights. There is a newly minted conservative majority on the court since the last LGBT case was heard and, this time, the bench's reliable swing vote in favor of equal protection — Justice Anthony Kennedy — is in retirement.

So it is no surprise that post-argument analysis by many Supreme Court observers sees a toss-up: It is simply too hard to predict how the court will rule on whether sexual orientation and transgender status are variations of sex discrimination and, thus, prohibited in Title VII of the Civil Rights Act of 1964.

But it is possible to narrow down the prospects. This can be done by looking at each individual justice and what they said during the October 8 arguments, how they voted in past LGBT matters, and relevant remarks they have made in past opinions. Combined, the information points to some probabilities.

The court must make two rulings: Whether Title VII prohibition of employment discrimination "because of sex" can cover sexual orientation, and whether it can cover transgender status.

A no means the justice rules against LGBT people and finds that Title VII does not prohibit discrimination based on sexual orientation or transgender status. A yes means the justice rules for LGBT people and protecting them from employment discrimination under Title VII.

Chief Justice John Roberts: Strong probable no
During oral argument, Roberts gave voice to the idea that the Title VII challenges were asking the court to "update" the federal law to include sexual orientation. This, he said, seemed more like a responsibility for Congress. He also wondered why it would be sex discrimination to fire a man in a same-sex relationship if the employer would also fire a woman in a same-sex relationship. He said the bathroom issue was a "huge problem." He worried about how the law would handle employers with religious objections to gay people. And he essentially said that transgender status was a "whole different case" and a "different answer" than discrimination based on biological sex.

In the past 11 cases that had significant specific interest to the rights of LGBT people, Roberts voted against such rights 55% of the time (in six cases). A notable exception was 2013's Hollingsworth v. Perry, where Roberts led the 5-4 majority that dismissed an appeal brought by proponents of California's Proposition 8 — a ballot measure that had banned same-sex couples from marriage. But as some observers noted, the majority could have struck down such bans in all 50 states; it did not. (That took another two years, until 2015's Obergefell v. Hodges.) On a technicality, it struck the ban only in California. And in his opinion, Roberts emphasized that he sees as "an essential limit" on the court's power: "we act as judges, and do not engage in policymaking properly left to elected representatives.

National Center for Lesbian Rights legal director Shannon Minter said, at least on the transgender case, Roberts is "plainly not on board."

Justice Clarence Thomas: Almost certain no
Thomas is famous for almost never speaking or asking questions during oral arguments, so his silence October 8 was simply routine. Plus, he had missed the first day of the session (October 7) due to illness.

In the past 15 LGBT-specific cases Thomas has voted on, he has opposed equal rights for LGBT people 13 times (87%). Of all the justices on the bench today, his record is the most consistently opposed to the interests of LGBT people.

Justice Ruth Bader Ginsburg: Almost certain yes
During oral argument, Ginsburg was the fourth most active questioner, and her questions and comments were pointedly helpful to the attorneys arguing in favor of Title VII covering discrimination based on sexual orientation and transgender status. She prompted attorney Pamela Karlan (who was representing two men fired for being gay) to address the chief arguments of those who want to limit the reach of Title VII — including that Congress never intended, when it passed the Civil Rights Act in 1964, to cover sexual orientation. She undercut the opposing side's claim that firing a male employee for being gay would not be sex discrimination because the employer would fire a female employee for being gay. As Ginsburg pointed out, "There's nothing in the record as far as I can see that there was a policy on the employer's part of discharging lesbian women." And she said, in the transgender case, "the object of Title VII was to get at the entire spectrum of sex stereotypes."

In 15 previous LGBT cases before the court, Ginsburg voted in support of equal rights for LGBT people 13 times (87%). Her voting record is the most consistently pro-LGBT of any justice on the bench today.

Justice Stephen Breyer: Almost certain yes
Breyer was the most vocal of the justices during the October 8 oral arguments, asking questions and commenting 35 times, with the bulk of his questions aimed at challenging the opposition to Title VII covering sexual orientation and transgender status. He constructed a hypothetical for the opposition attorney Jeffrey Harris (representing the employers who fired two men for being gay) that led Harris to agree that firing a Catholic for marrying a Jew was still "religious discrimination" even if the employer claimed he fired the employee because he was against interfaith marriages. Breyer said his hypothetical was "an identical case to this one." And he dismissed opposing attorneys' "parade of horribles" (concerning bathrooms, locker rooms, sports teams).

Historically, Breyer has voted in support of equal rights for LGBT people in 11 out of 15 cases (73%).

Justice Samuel Alito: Almost certain no
During oral argument, Alito's position became immediately clear: This issue needs to be resolved by Congress. "What some people will say [if this court rules Title VII covers sexual orientation]," said Alito, "is that whether Title VII should prohibit discrimination on the basis of sexual orientation is a big policy issue and that it is a different policy issue from the one that Congress thought it was addressing in 1964. ... And if this court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature."

In 11 decisions involving LGBT issues, Alito has voted against the interests of LGBT people seven times (64%). His dissent in U.S. v. Windsor (in which the majority struck down a key provision of the Defense of Marriage Act) focused on there being no "right to enter into same-sex marriage" because there was no explicit statement about same-sex marriage in the Constitution. "Any change on a question so fundamental should be made by the people through their elected officials," he wrote. That was essentially what he repeated during oral argument regarding sexual orientation and Title VII.

Justice Sonia Sotomayor: Almost certain yes on sexual orientation only
Sotomayor was tied with Justice Neil Gorsuch for second place in terms of the number of questions and comments asked by the justices at the hearing. Perhaps anticipating that some justices would express concern about the "social upheaval" some believe would be caused by recognizing sexual orientation and transgender status in Title VII, Sotomayor put the issue on the table very early in the argument. She said the concern about the bathroom issue was "raging in this country" and asked how the courts should deal with women who are uncomfortable with a transgender person in the bathroom. She also stated emphatically that "we can't deny that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs poorly, not because they can't do whatever is required of a position, but merely because" they are gay.

Minter said Sotomayor's comments were telling.

"It was clear that the justices are much less familiar with transgender people than they are with gay people," said Minter. "And it was also clear that many of them, including even Justice Sotomayor, are still affected by many of the most common misconceptions about transgender people — including, especially, just a fundamental inability to believe that a transgender woman is really a woman or that a transgender man is really a man."

Sotomayor's voting record has favored equal rights for LGBT people 9 out of 11 times (82%).

Justice Elena Kagan: Almost certain yes
During oral argument, Kagan pointedly emphasized the court's fixation on looking strictly at the text of a law, rather than other factors. "For many years," she said, "the lodestar of this court's statutory interpretation has been the text of a statute, not the legislative history and certainly not the subsequent legislative history. And the text of [Title VII] appears to be pretty firmly in Ms. Karlan's corner." Speaking to attorney Harris, who represented the employers who fired gay men, Kagan said, "Did you discriminate against somebody ... because of sex? Yes, you did."

Minter said Kagan was "very active and eloquent — and did a tremendous job of poking holes in the arguments of the government and the employer."

Kagan's voting record on LGBT cases has been pro-LGBT six out of nine times (67%). She surprised many in the LGBT community last year when she voted with the majority that said a Colorado commission showed hostility to a baker's religious beliefs against same-sex couples marrying.

Justice Neil Gorsuch: Possible yes on sexual orientation; uncertain on trans
Gorsuch's performance got the lion's share of media attention because he made a couple of comments that suggested he is on the fence. For instance, he said that, while sexual orientation discrimination may have been in play when the employers fired the men for being gay, "isn't sex also in play here? And isn't that enough?" for a Title VII violation, he asked. "The statute," he said, "talks about a material causal factor ... not the sole cause, not the proximate cause, but a cause." Gorsuch said he was "really close" to seeing the argument that Title VII's text should cover sexual orientation and transgender status, but he also expressed concern about what he said would be the "massive social upheaval" of such a decision.

Based just on those comments, said Minter, "it would have been easy to conclude that we may well have his vote." But the transgender discussion, said Minter, "was much tougher."

Gorsuch joined the bench in April 2017 under a cloud of controversy: Republican Senate Majority Leader Mitch McConnell (Kentucky) refused to let then-President Barack Obama's nominee to replace the recently deceased Justice Antonin Scalia to proceed through the confirmation process. Once President Donald Trump took office, McConnell allowed Trump to nominate Gorsuch. During his confirmation hearing, Gorsuch evaded questions about his positions on LGBT legal issues, but he did say, "if you want to create a revolution in the area and change the law dramatically, that's for [Congress] to do." He was also criticized for an article he wrote before becoming a judge that claimed "liberals" were filing lawsuits on "everything from gay marriage to assisted suicide" to achieve their "social agenda."

In four LGBT-related cases, Gorsuch has voted against the interests of LGBT people twice (50%).

Justice Brett Kavanaugh: Probable no
Kavanaugh is the newest member of the bench, joining in October 2018. His confirmation, too, came under a storm of controversy, after several women went public with allegations that he had sexually assaulted them in high school and college. During the two hours of arguments, Kavanaugh spoke up only once. He asked attorney Harris (representing employers), "Are you drawing a distinction between the literal meaning of 'because of sex' and the ordinary meaning of 'because of sex?' And, if so, how are we supposed to think about ordinary meaning in this case?" Harris responded that he didn't see a difference, and Kavanaugh did not offer any explanation or delve further.

Title VII does not define sex, but a 1975 decision at the U.S. Supreme Court (Burns v. Alcala) said, "Words used in a statute are to be given their ordinary meaning absent persuasive reasons to the contrary." In another decision four years later (Perrin v. U.S.), the court said, "A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning."

Minter said a "literal" reading of the word "sex" in the statute helps LGBT people, while an "ordinary" reading would help an employer who wants to discriminate. "Justice Kavanaugh was either highlighting a potential weakness in the employer's argument or — more likely — warning the attorney not to make an argument that would require the court to disregard the literal text ...," Minter said. Disregarding the literal meaning, Minter said, "would push Justice Gorsuch to support the plaintiffs based on a strict textualist interpretation of the law."

Kavanaugh has yet to vote on an LGBT-specific case before the Supreme Court. Like Gorsuch, he dodged questions about his views on LGBT issues during his confirmation process.

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