Who’s the “swing vote,” the “parade of horribles,” and more.
I’m sorry that I haven’t blogged lately, but duty called. I’ve missed you, dear readers!
As you all knew, the U.S. Supreme Court heard oral argument last week in the cases addressing whether sexual orientation discrimination and gender identity discrimination violate Title VII of the Civil Rights Act of 1964.
And I have listened to the audio of the arguments while following along with the transcripts. Here are the links in case you’d like to do the same:
Bostock v. Clayton County (whether Title VII prohibits discrimination based on sexual orientation):
R.G. & G.R. Harris Funeral Homes v. EEOC (whether Title VII prohibits discrimination based on gender identity):
The arguments were fascinating, so I do recommend that you listen and read if you are interested in this issue and have about two hours to spare. My observations:
Curiously “conservative” argument. The employees’ attorneys in both cases (wisely, I think) made what I consider to be a very “conservative” argument. Rather than arguing that “sexual orientation” or “gender identity” was a new or expanded type of “sex,” they argued that it wasn’t necessary for the Court to redefine “sex” to find in their favor.
From a sexual orientation standpoint, the argument was that a gay employee is “similarly situated” to a heterosexual employee of the opposite sex. For example, a gay man and a heterosexual woman are both attracted to men, so they are appropriate comparators.
If an employer takes adverse action against the man for being attracted to men, but not against the woman for being attracted to men, the employer is guilty of discrimination based on “sex” in the old-fashioned sense. In other words, the man is being treated less favorably for behavior or preferences that are identical to the behavior or preferences of his female counterpart. That’s just old-fashioned sex discrimination, and it isn’t necessary to determine what “sex” meant in 1964, when Title VII was enacted, versus in 2019.
In the context of gender identity discrimination, the argument was essentially the same. The attorney for Aimee Stephens — the transgender employee who was terminated after she announced that she would begin presenting as a female — that Ms. Stephens was “assigned” the male sex at birth, so her gender identity and her “assigned-at-birth” sexes did not match. In determining whether she had a valid discrimination claim, the appropriate comparator would be an employee who was “assigned” the female sex at birth and whose gender identity was also female. If the employer treated the transgender female less favorably than the biological female, then it would be treating the two employees differently based only on their “assigned,” or biological, sexes. In other words, it was treating the transgender employee less favorably because she was a biological male. Thus, transgender discrimination is nothing but a type of old-fashioned “sex” discrimination — even as the term “sex” was understood in 1964.
Interestingly, the attorneys for the employees also agreed that Title VII did not require employers to treat women and men in an identical manner, as long as the differential treatment did not disadvantage one sex over the other. (For example, an employer with a formal dress code could require men, but not women, to wear neckties to work without violating Title VII.) They also declined to endorse identical terms of address for men and women, identical dress codes for men and women, or gender-neutral bathrooms and changing areas. The topic of preferred pronouns never came up, or if it did, it was so fleeting that I missed it.
From the standpoint of the employees, I think this was exactly the right approach to take with a Court that leans conservative by 5-4.
The “Parade of Horribles.” Both the “liberal” and the “conservative” justices asked about whether interpreting Title VII to encompass LGBT rights would make it unlawful for employers to have separate male and female restrooms, or whether transgender women (biological males) would be able to work in, say, a shelter for rape victims or compete with biological women in sports. Justice Stephen Breyer dismissed these concerns as a “parade of horribles.” Interestingly (see “Curiously conservative,” above), the lawyers for the employees argued that Title VII would not mean same-sex bathrooms, and they said that biological femaleness (is that a word? probably not) might be a “bona fide occupational qualification” for women’s shelters and sports. Hmm. Did they mean it?
Legislative “fine-tuning.” On the employer and government sides of these cases, the strongest argument was one made by the U.S. government.* Solicitor General Noel Francisco noted that in all the states that have enacted their own LGBT protections, the statutes have included exceptions based on the employers’ religious beliefs. The Solicitor General argued that, if the Court preempted Congress on the issue of LGBT rights under Title VII, it would prevent this type of legislative “fine-tuning,” which is important in creating a greater societal consensus.
*Even though the Equal Employment Opportunity Commission had sided with the employee in one of the sexual orientation cases and was the plaintiff in the gender identity case, that was during the Obama Administration. The U.S. government is now on the side of the employers.
Poor Judge Posner! (Not really.) Do you remember Hively v. Ivy Tech? That was another big sexual orientation/Title VII case from the U.S. Court of Appeals for the Seventh Circuit. In finding that Title VII did prohibit sexual orientation discrimination, Judge Richard Posner wrote a concurring opinion, admitting that Congress had no intention of protecting LGBT rights when it enacted Title VII, but that it didn’t matter:
I would prefer to see us acknowledge openly that today, we who are judges rather than members of Congress, are imposing on a half-century-old statute [Title VII] a meaning of “sex discrimination” that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes. We are not. . . .
At the Supreme Court arguments last week, attorneys for the employees disavowed Judge Posner’s “Congress-be-damned” analysis, and Pamela Karlan, the attorney for Mr. Bostock, even called him a “loose cannon.” That had to hurt.
Reading the Justices. The “liberal” wing of the Court — Justices Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor — actively participated in both arguments. Justice Breyer was downright aggressive at times. It seemed clear that all four would find in favor of the employees in the two cases. The “conservative” side was quieter, with the exception of Justice Neil Gorsuch. Justice Brett Kavanaugh asked one question in the Bostock case, and that was it. Justice Clarence Thomas didn’t say a thing. Chief Justice John Roberts asked a few mild questions. Justice Samuel Alito became a little aggressive at one point in Bostock, sarcastically telling the employee’s attorney, “We might as well just take the Equality Act and issue that as our opinion . . ..” (Bostock transcript, page 22.) But after that exchange, he was relatively quiet.
The alleged “swing vote,” according to most commentators, is not Chief Justice Roberts but Justice Gorsuch. This assessment seems to be based on his statement during the R.G.-G.R. argument that it was a “close case.” But I think his statement was misinterpreted. In fact, I am going to go out on a limb and say that I do not think Justice Gorsuch will rule in favor of the employees in either of these cases. Here’s the full exchange between Justice Gorsuch and David Cole, the attorney for Aimee Stephens:
JUSTICE GORSUCH: . . . When a case is really close, really close on the textual evidence, and I — assume for the moment that I —
MR. COLE: Yeah.
JUSTICE GORSUCH: — I’m with you on the textual evidence. It’s close, okay? We’re not talking about extra-textual stuff. We’re — we’re talking about the text. It’s close. The judge finds it very close.
At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that — that Congress didn’t think about it —
MR. COLE: So —
JUSTICE GORSUCH: — and that — that is more effective — more appropriate [sic] a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.
This exchange is on pages 26-27 of the R.G.-G.R. transcript linked above.
First, I don’t think Justice Gorsuch was talking about himself. I think he was talking about a hypothetical judge: “[A]ssume for the moment . . . The judge finds it really close.”
Second, I think he’s asking whether, even in a close case, whether it isn’t better to provide protections to LGBT individuals through the give-and-take of the legislative process rather than through court interpretation. (Pretty much what Solicitor General Francisco argued.) Justice Gorsuch was being the “anti-Posner,” if you will.
My prediction: Justice Gorsuch will find that Title VII does not prohibit sexual orientation or gender identity discrimination. You can throw rocks at me if it turns out that I am wrong.