The Federalist Society justice appeared open to certain plaintiffs' arguments on the Title VII SCOTUS case, but no one is getting their hopes up.
October 8, 2019

Plot twist: the man who sits in Merrick Garland's rightful seat on the Supreme Court is turning out to play a pivotal role in three of the cases argued today defending the rights of the LGBTQ community. Justice Neil Gorsuch has emerged as a potential swing vote in these Title VII cases, in which the court must decide if firing a person for being gay, transgender, or anywhere on the LGBTQ spectrum violates the protections against sex discrimination set out in the 1964 law.

Two of the cases were brought by men who were fired for being gay, and the third was brought by a transgender woman who was fired when she told her employer she would begin dressing in the way that matched her gender identity. To the surprise of many, Justice Gorsuch asked questions and made statements indicating openness to interpreting the law in favor of the plaintiffs.

According to Pete Williams, who is NBC's Justice Correspondent:

WILLIAMS: Yeah, the question is does Title VII, that makes it illegal to discriminate on the basis of sex, cover sexual orientation? The court seemed pretty divided today between the conservatives and the liberals. The conservatives say clearly Congress didn't have sexual orientation on its mind 55 years ago when it passed Title VII of the Civil Rights Act, and President Johnson signed it. And Justice Neil Gorsuch said it may create social upheaval to rule that it does.

But Justice Gorsuch also seemed sympathetic to the notion that you can't take the sex out of sexual orientation. That's what lower courts that ruled in favor of these plaintiffs are saying, that's departure from the way the courts ruled the past five decades or so. They've recently said yes, sexual orientation is covered by Title VII.

By the way, Justice Ginsburg said it may be true that wasn't on the minds of Congress in 1964, but Congress wasn't thinking that sexual harassment was covered by the law either, and the courts have ruled that way in the years since Title VII was passed. So, it's gonna be quite close, I think, probably 5-4, and the question is which way is Justice Gorsuch gonna vote? He is a textualist, he believes in reading the words of the law. So, for a person like that, what Congress had in mind when it passed the law shouldn't count, only what the words say, and he did seem a little bit sympathetic to this today.

But let's not get our hopes up. As Jay Michaelson wrote in The Daily Beast,

First, it’s a fool’s errand to predict how a justice will vote based on the questions they ask at oral argument. Often, justices will make arguments they don’t believe, simply to test those arguments and see if they hold up. While, in this case, it’s easy to interpret Justice Alito’s hostility and Justice Kagan’s “extremely simple,” Justice Gorsuch’s equivocation could really go either way.

Second, Justice Gorsuch simply noted the textualist point: on the page, the statute favors the plaintiffs. He didn’t say that textualist point overrules Congress’s intent in 1964, or its refusal to protect gay and trans people since. And he added that ruling for plaintiffs could cause “massive social upheaval.”

Yeah, about that "massive social upheaval" thing?

No one, though, said it more beautifully, with more force and poignancy than attorney for one of the Plaintiffs, David Cole from the ACLU. In response to Gorsuch's "concern" about social upheaval, he said the following:

MR. COLE: So, first of all federal courts of appeals have been recognizing that discrimination against transgender people is sex discrimination for 20 years. There's been no upheaval. As I was saying, there are transgender male lawyers in this courtroom following the male dress code and going to the men's room and the -- the -- the -- the Court's dress code and sex-segregated rest rooms have not fallen. So the notion that somehow this is going to be a huge upheaval, we haven't seen that upheaval in 20 years, there's no reason you -- you would see that upheaval. Transgender people follow the rule that's associated with their gender identity. It's not disruptive.

And as to whether this is a question of interpretation, it is absolutely a question of interpretation. How in the world can the Court interpret Title VII to say that Ann Hopkins can't be fired for being insufficiently feminine, but my client can be fired for being insufficiently masculine?

There is reason for cautious optimism for sure. But it relies heavily on Neil Gorsuch favoring textualism over originalism. Frankly, that's a toss-up the outcome of which is impossible to predict. Meanwhile, the LGBTQ community and their loved ones have been waiting far too long for justice and the protection they deserve.

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