Last week, the United States Supreme Court heard the trio of LGBT cases. I was previously on record as saying that I expected sexual orientation to be a difficult call, and the transgender plaintiff would win because discrimination occurring against transgender individuals is usually based upon stereotypes. I then read the transcript of the oral argument, and it certainly didn’t work out that way. Reading tea leaves from the oral arguments is next to impossible but here goes anyway. You might ask what does LGBT rights have to do with disability discrimination. The answer to that is it does for many reasons. First, there are opinions, such as here, holding that gender dysphoria is a disability under the ADA. Second, as you know, equal protection under the 14th amendment is a big interest of mine. What equal protection jurisprudence does is divide people against each other by groups. Also, as you know, people with disabilities vary their equal protection class depending upon the facts but no other group of individuals does that. Third, I have admired the gains that the LGBT community has made over the years, and in many ways, they set the roadmap for others, including persons with disabilities. Finally, on a personal level, the synagogue my family belongs to, Congregation Bet Haverim, was originally founded as the home for lesbian and gay Jews in Decatur Georgia. Now, the synagogue has to be at least 50% heterosexual if not more. That said, our rabbi is openly gay. The synagogue’s leadership also contains LGBTQ leadership. You really can’t belong to our synagogue unless you are open to LGBTQ. It just wouldn’t make any sense. Turning to the discussion of the cases before the United States Supreme Court, the blog entry is divided into the categories of the transgender case and the sexual orientation cases. The reader is free to read either or both of the categories.
Real Party in Interest Stephens (The Transgender Case)
I actually read the decisions backwards. That is, I read the transgender transcript first and then I read the sexual orientation transcript. That is actually backwards as to how the oral argument actually occurred. However, I was glad I did it that way. The reason I did it that way was because I thought the transgender case was the easier case. It turns out it wasn’t. The Supreme Court has adopted a rule now where a party get two minutes of uninterrupted time for oral argument and after that, the Justices are free to fire away. In fact, one of the attorneys making oral argument made a joke of it by saying that if nobody had any questions, he was going to reserve the balance of his time for rebuttal. Moving on to the argument itself, I thought the following was interesting:
- Justice Roberts immediately struggled with how transgender discrimination could be because of sex rather than transgender status, which is a wholly different animal.
- In fact, many of the Justices were not convinced that transgender discrimination was because of sex.
- Justice Kavanaugh was silent.
- Many of the Justices seemed amenable to a parade of horrible’s argument. Such as, if transgender was protected by title VII, what would that mean for transgender athletes vis-à-vis title IX. I will say that in the LGBT community, there is a lot of division as to how to deal with the transgender athlete. Justice Sotomayor raised the question of how to deal with different bathrooms and locker rooms. That said, she wasn’t buying the parade of horrible’s argument.
- Justice Breyer was not persuaded by the parade of horrible’s.
- It is possible that stereotyping vis-à-vis Price Waterhouse might just get enough votes to have transgender discrimination protected under title VII (Justice Gorsuch mentioned that possibility).
- With respect to transgender discrimination, figuring out an appropriate comparator is a real problem.
- Wide agreement among the Justices that the legislators clearly didn’t intend to include transgender when title VII was enacted.
- Justice Gorsuch wondered whether protecting transgender is not a legislative decision.
- Justice Gorsuch also wondered whether the court should not take into consideration the massive social upheaval protecting transgender individuals would generate, especially in light of the possibility that Congress never thought about transgender when they drafted title VII.
- Justice Ginsburg was not buying the argument that title VII only protects people specifically thought up by Congress in 1964. After all, sexual harassment is protected by title VII and Congress had not thought about at the time.
- Justice Gorsuch says the, “case is really close, really close on the textual evidence.” He is likely to be the swing vote on this case. As mentioned above, he has several avenues to consider either way.
As I said earlier, reading tea leaves based upon oral argument is dangerous. The vibe I get from reading the oral argument transcript in the transgender case is that the court is unlikely to protect transgender from title VII discrimination. I don’t know if it is going to be a 5-4 decision. In a way that isn’t surprising because the Lesbian, Gay, and straight community can all struggle mightily with transgender. How Justice Gorsuch deals with the stereotyping issue, which I thought what the strongest part of the case, will be interesting. Finally, it seems pretty clear from reading the oral argument transcript, that the attorneys clearly did not expect the argument to go the way it did. The attorneys often struggled to address the questions of the Justices as if they had not anticipated them.
Bostock And Zarda (Sexual Orientation)
- Justice Alito is going to go with legislative intent. Sexual orientation could not have been protected by the legislature in 1964, and so, that is the end of the matter.
- Justice Gorsuch just might be persuaded to protect sexual orientation under title VII because title VII explicitly provides for a mixed motive instruction. As he sees it, sex is part of the equation in sexual orientation discrimination.
- Justice Gorsuch was also thinking that sexual orientation discrimination could be discrimination “because of sex.”
- Justice Kavanaugh struggled with sexual orientation discrimination could be discrimination “because of sex.”
- Protecting sexual orientation discrimination because of stereotyping is another possible alternative that potentially could get a majority of the Justices.
- While a whole bunch of judges struggled with “because of sex,” when it came to transgender discrimination, there was far less resistance to that when it came to sexual orientation discrimination.
- Justice Roberts wondered how religious organizations would be affected by a ruling that sexual orientation is protected under title VII. Justice Gorsuch is very big on religious freedom, and one wonders if that question wasn’t in essence directed toward Justice Gorsuch.
- Justice Roberts wondered why states are explicitly protecting sexual orientation if it wasn’t already covered by sex discrimination statutes.
- Swing vote is likely to be Justice Gorsuch.