How far does the ‘watershed’ Supreme Court decision reach?

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LGBTQ News analysis

When the U.S. Supreme Court’s decision in the Title VII case came down June 15, the significance of the ruling understandably overshadowed some details. One of those details is what the distribution of votes means to future rulings of the nation’s highest court.

Justices Roberts and Gorsuch have voted in support of equal rights for LGBT people 45 percent of the time

Going into oral argument for the three cases (Bostock v. Clayton County, High Altitude v. Zarda, and Harris Funeral v. EEOC), the Supreme Court seemed to be generally divided 5 to 4. The five members appointed by Republican presidents were on one side: Chief Justice John Roberts, and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. The four members appointed by Democratic presidents were on the other side: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan).

With the 6 to 3 Bostock decision, Republican appointees Roberts and Gorsuch teamed up with the four Democratic appointees. LGBT legal activists are reluctant to read too much into the Roberts and Gorsuch votes.

But statistically speaking, on LGBT-related cases only, the votes by Roberts and Gorsuch put them in a middle ground. Roberts and Gorsuch have voted in support of equal rights for LGBT people 45 percent of the time (Roberts in 11 decisions) and 50 percent (Gorsuch in four). By comparison, the voting records on LGBT cases for the other justices are clearly split left and right: On the left are Ginsburg (91 percent), Breyer and Sotomayor (82 percent), and Kagan (78 percent). On the right are Alito (27 percent), Thomas (nine percent), and Kavanaugh, with the Bostock case his only LGBT decision thus far (zero percent).

In Bostock, the majority ruled that Title VII of the federal Civil Rights Act, which prohibits employment discrimination “because of sex,” includes a prohibition of discrimination based on sexual orientation and gender identity.

Future decisions may solidify the middle ground standing for Roberts and Gorsuch on LGBT issues, but the dissents of Alito and Kavanaugh make clear that they champion a more entrenched resistance to equal rights for LGBT people. In his dissent to Bostock, Alito spent an inordinate amount of words recounting the history of society’s views about homosexuality, from “sexual deviation” to “mental disorder” to conclude that “Society’s treatment of homosexuality and homosexual conduct was consistent with this understanding” and “reflected in the rules governing the federal work force.”

While today’s society has recognized the “injustices of past practices,” wrote Alito, the Supreme Court has authority to ask only “whether ordinary Americans in 1964 would have thought that discrimination because of ‘sex’ carried some exotic meaning….”

And what the Court should have contemplated, said Alito, are the “people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex.” In conclusion, he notes that “many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves.” He says nothing to suggest that he is one of those many Americans. Instead, he suggests the Bostock majority is simply acting on its own “humane and generous impulses” toward LGBT people.

Brett Kavanaugh on CSPAN October, 25 2017
Brett Kavanaugh on CSPAN October, 25 2017

Unlike Alito, Kavanaugh expresses a willingness to acknowledge that, “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law.

“They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

But Kavanaugh dissents because he says the court’s interpretation of the text of Title VII is limited to the “ordinary public meaning” of the word “sex” at the time Title VII was enacted and that that ordinary public meaning “was the same in 1964 as it is now.” Kavanaugh, who was born in 1965, then offers up the reasoning that “sex” cannot be read as “sexual orientation” because “Seneca Falls was not Stonewall.” “The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both,” wrote Kavanaugh. “So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”

Given that Justice Ginsburg, an icon in the fight for equal rights for women who argued over 300 cases against sex discrimination, joined the Gorsuch majority seriously undermines Kavanaugh’s argument. Gorsuch, like Ginsburg, keeps it simple:

“If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met.”

“Gorsuch doesn’t really mince words,” said Chase Strangio, deputy director for Transgender Justice at the ACLU LGBT & HIV Project, during a teleconference with reporters after the ruling. Strangio said the Bostock decision will have an “incredibly sweeping impact for our community.”

there will still be more litigation to fully secure equal rights for LGBT people

But he and others acknowledged that there will still be more litigation to fully secure this giant step toward equal rights for LGBT people.

Transgender people in the military, for instance. While Title VII does not directly apply to service members, said Shannon Minter, legal director for the National Center for Lesbian Rights, “the Court’s analysis of why discrimination because a person is transgender is sex discrimination would apply equally to the equal protection clause [of the U.S. Constitution], which is the basis of our sex discrimination claim in the [Trump] military ban cases.”

The Bostock ruling, said Minter, “greatly strengthens our sex discrimination claim in that litigation.”

“This is a watershed moment for LGBTQ Americans, who have been working since the Stonewall riots 51 years ago to pass nondiscrimination protections for the community,” said Jon Davidson, former legal director for Lambda Legal and current legal counsel to Freedom for All Americans. “This historic ruling means that LGBTQ people are protected against employment discrimination across the entire country.

“But there are still critical gaps in our federal nondiscrimination laws,” said Davidson. “While LGBTQ people are now protected from discrimination at work nationwide, there are still no federal laws prohibiting sex discrimination in public spaces or in federally funded programs. This means it will still be legal in a majority of states to discriminate against LGBTQ people in places like stores, restaurants, and hotels, and in federally funded programs such as schools, child welfare agencies, and shelters.”

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