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SCOTUS Split on Whether Title VII Bars LGBTQ Employment Discrimination, Gorsuch ID’ed as Possible Swing Vote: REACTIONS
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Today the U.S. Supreme Court heard arguments on Title VII and LGBTQ job discrimination, hearing cases involving whether someone can be fired from their job for being gay or transgender. Background on the cases HERE.
Read the transcript of the two consolidated cases, Bostock v. Clayton County and Altitude Express v. Zarda, HERE.
Gorsuch has been identified as a possible swing vote.
The Washington Blade‘s Chris Johnson reports that Justice Neil Gorsuch emerged as a potential ally for LGBTQ workers based on his questioning: ‘Gorsuch, a Trump-appointed justice who considered himself a textualist, asked many questions suggesting he’s at least considering the idea of anti-LGBT discrimination is a form of sex discrimination, thus prohibited under Title VII of the Civil Rights Act of 1964. … Throughout the arguments, Gorsuch made several inquiries on whether the concept of sex is inseparable from anti-LGBT discrimination. At one point, Gorsuch asked, “Isn’t sex also at play here?” and gave an example of a employer firing a man for being attracted to another man as an example of sex discrimination. … To be sure, Gorsuch also asked questions about whether employers could keep sex-segregated bathrooms under LGBT-inclusive Title VII.’
Bloomberg reports: ‘The two-hour session Tuesday suggested that LGBT advocates had at least a chance to win the vote of conservative Justice Neil Gorsuch, along with the court’s four liberal members. Gorsuch sent mixed signals, calling the case “really close.” … Trump’s other appointee, Brett Kavanaugh, said very little and didn’t tip his hand. … Another conservative justice, Samuel Alito, was skeptical of the workers’ claims, at one point telling the lawyer for two gay men that “your whole argument collapses.” … Chief Justice John Roberts expressed concern about the impact on religious organizations if the high court were to side with LGBT workers. He was one of several justices who asked what the cases could mean for single-sex bathrooms.’
Here are some initial reactions via Twitter from those in the room.
Bloomberg’s Greg Stohr:
Gorsuch says that when a person is fired because of sexual orientation, that person’s sex is at least a “contributing cause.”
— Greg Stohr (@GregStohr) October 8, 2019
Liberals all seemed firmly on employees’ side. Kagan says language of Title VII “pretty firmly” backs gay workers’ claims.
— Greg Stohr (@GregStohr) October 8, 2019
Again, all of above is based on first half of argument, which centered on sexual orientation (though there was also some discussion about gender identity).
— Greg Stohr (@GregStohr) October 8, 2019
Slate’s Mark Joseph Stern:
Solicitor General Noel Francisco told the court that LGBTQ equality will lead to men in women’s showers. Lots of arguments about bathrooms. Cringe-worthy.
Pam Karlan was INCREDIBLE. Her turn at the lectern was powerful and bold and witty and perfect. I was blown away.
— Mark Joseph Stern (@mjs_DC) October 8, 2019
Kavanaugh asked one question: Whether the anti-LGBTQ side was “drawing a distinction between the literal and ordinary meaning” of discrimination “because of sex.”
I’m not sure he has made up his mind. I suspect that when he does, he will side against LGBTQ rights.
— Mark Joseph Stern (@mjs_DC) October 8, 2019
Gorsuch seemed ambivalent, but said that “when a case is really close on the textualist evidence,” the court should refuse to work “a drastic change in this country.” I think he will cast an anti-LGBTQ vote and claim judicial modesty.
— Mark Joseph Stern (@mjs_DC) October 8, 2019
There was a low-key beautiful moment when Kagan almost referred to a trans person’s “biological sex,” then stopped herself and thought for a moment and said “sex assigned at birth” instead.
— Mark Joseph Stern (@mjs_DC) October 8, 2019
Anyway I think the court will reject the argument for LGBTQ equality by a 5–4 vote, with the five conservatives claiming judicial modesty and saying Congress has to deal with this.
But I wouldn’t say there’s NO cause for hope. It was not a wipeout for LGBTQ rights by any means.
— Mark Joseph Stern (@mjs_DC) October 8, 2019
Washington Blade‘s Chris Johnson:
Gorsuch, a textualist, asked many Qs about if “sex is also in play” in cases of anti-LGBT discrimination.
To be sure, Gorsuch also asked Qs about whether employers could keep sex-segregated bathrooms under LGBT-inclusive Title VII.
— Chris Johnson (@chrisjohnson82) October 8, 2019
LGBT people should definitely *NOT* expect support from Chief Justice John Roberts.
His questions pointed out Congress didn’t intend to include LGBT people in 1964, bathroom issues and states doing the job to ban anti-LGBT discrimination.
— Chris Johnson (@chrisjohnson82) October 8, 2019
The 4 liberal justices – Breyer, Ginsburg, Sotomayor and Kagan- were forceful in advocating for LGBT inclusion under Title VII.
Breyer had a great line that Congress intended the Civil Rights Act to end invidious discrimination and would have included LGBT people if passed now.
— Chris Johnson (@chrisjohnson82) October 8, 2019
Here’s a question Gorsuch poised to @Aclu’s David Cole that I think encapsulates the justice’s thinking:
“Assume for a moment that I’m with you on the textual argument. Should the court be concerns about the massive social upheaval that would ensue?”
— Chris Johnson (@chrisjohnson82) October 8, 2019
All in all, hard for me to predict outcome of the LGBT cases based on Title VII arguments.
But if the LGBT side does win, it may be Justice Gorsuch who takes it over the finish line.
— Chris Johnson (@chrisjohnson82) October 8, 2019
SCOTUSblog’s Amy Howe:
#SCOTUS just finished oral arguments on whether federal civil rights laws protect LGBT employees. Case could hinge on Justice Neil Gorsuch, who acknowledged that question is close but also expressed concern about “massive social upheaval”
— Amy Howe (@AHoweBlogger) October 8, 2019
The Economist‘s Steven Mazie:
The hearings were dominated by conceptual and interpretive questions. But near the end, Justices Breyer & Sotomayor summoned the big picture of the purpose of the civil rights movement: protecting people from invidious discrimination.
— Steven Mazie (@stevenmazie) October 8, 2019
Gorsuch said it was a close textual case, but suggested that “judicial modesty“ militates against sparking an “upheaval“ in the definition of sex discrimination. A signal of the concurrence he may have already written in his mind?
— Steven Mazie (@stevenmazie) October 8, 2019
Zoe Tillman from Buzzfeed News:
A few quick takeaways from the Title VII arguments, more to come in a bit:
– Justices on both sides of ideological spectrum are clearly really focused on the issue of bathroom use and the rights of transgender individuals, even as lawyers kept saying this is not that case— Zoe Tillman (@ZoeTillman) October 8, 2019
– Setting aside Kavanaugh, the court’s conservative arm spent time exploring the arg that this is a matter for Congress, and not the courts, to decide. On the other side of that coin, the liberal arm asked Qs about historical role of courts in protecting rights
— Zoe Tillman (@ZoeTillman) October 8, 2019
ACTIVITY OUTSIDE THE COURT.
Approximately 20 people from Housing Works were arrested protesting outside the court, the Washington Blade reports: “We already live in a world where people who don’t fit societal conventions of gender expression are subject to stigma, discrimination, verbal and physical abuse, and even being killed for who they are,” said Housing Works CEO Charles King in a press release that Housing Works issued earlier this week. “This is compounded for our transgender, non-binary and gender non-conforming brothers, sisters and siblings. We are mobilizing this action because we are deeply concerned and angered that the gates could be opened to losing rights and protections in the workplace, in education, healthcare, the military and beyond.”
BREAKING NEWS: Dozens of @housingworks members are blocking First Street, N.E., in front of the U.S. Supreme Court in an act of civil disobedience. My colleague @MichaelKeyWB says Capitol Police have begun to arrest the protesters @WashBlade @LosAngelesBlade pic.twitter.com/xONCgPRlPg
— Michael K. Lavers (@mklavers81) October 8, 2019
Laverne Cox on steps of Supreme Court: “I am so incredibly honored and overwhelmed that I got to be present on this historic day,” when “the very first case involving transgender rights was argued before the Supreme Court.” t.co/vJJTruAqpm pic.twitter.com/x7RgNu0bqp
— ABC News (@ABC) October 8, 2019
The post SCOTUS Split on Whether Title VII Bars LGBTQ Employment Discrimination, Gorsuch ID’ed as Possible Swing Vote: REACTIONS appeared first on Towleroad Gay News.
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