Back in October I wrote about these cases, including the case involving whether businesses requiring employees to dress in traditional gender-specific garb discriminated against transgender workers without violating federal civil rights law. Solicitor General Noel Francisco and other Justice Department attorneys argued just that , claiming that Congress didn’t intend to include transgender status when it passed Title VII of the 1964 Civil Rights Act (I think that’s obvious), so the law’s ban on discrimination because of “sex” referred only to unequal treatment of men and women in the workplace. In R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, the Justice Department opposed the position of the Equal Employment Opportunity Commission that the firing of former funeral home director Aimee Stephens after she announced she would transition from male to female violated the Act, arguing that redefining sex discrimination was a job for Congress, not the courts. I wrote at the time,
It seems clear that giving LGBTQ Americans the same protection against discrimination as other minorities is the ethical course. This seems to be a technical dispute over whether the Courts or Congress should fix the problem. That argument is worth having, and I would not be shocked in a SCOTUS majority said that the omission in the law was unjust, but it was not the Court’s job to fix it. In the long run, it will be illegal to discriminate against LGBTQ citizens in the workplace, as it should be. The only question is how drawn out, angry and divisive the process will be to get there.
Well, we have our answer. The Supreme Court’s ruling in three cases announced today holds that the civil rights law as written currently protects gay and transgender workers from workplace discrimination. The cases were consolidated, and vote was 6-3, with Roberts and Gorsuch joining the liberal bloc. You can download the decision here. [Kudos and thanks to valkygrrl, who sent me the opinion before it was widely available online.]
Here is simple summary of Justice Gorsuch’s opinion for the majority: It’s obvious that discrimination against gay or transgender employees is to some extent based on sex.
Here is a simple summary of Justice Kavanaugh’s dissent: Courts are obligated to interpret statutory language according to its “ordinary” meaning and not its “literal” meaning, otherwise the courts are interpreting laws as they should be or how the courts wish they were rather than what they are.
The conservative justices who dissented, Alito ( who likens Gorsuch’s majority opinion to a pirate ship: “It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.”), Thomas and Kavanaugh, are not wrong that the Court is applying a law that wasn’t intended to apply to the issue at hand in the interests of justice but to the detriment of conservative judicial principles. As I read Gorsuch’s opinion, I was thinking, “Boy, would Scalia have hated this!” However, the decision is pretty obviously the right and fair one, and on that basis it is difficult to argue too vigorously against the majority opinion.
Not impossible, however. Over at the National Review, Ed Whelen writes,
[T]he longstanding acceptance of sex-specific restrooms, locker rooms, shower facilities, and dress codes, all of which require taking account of an employee’s sex,severely complicates Gorsuch’s claim that any employer policy that requires taking account of an employee’s sex clearly discriminates on the basis of sex under Title VII….Gorsuch’s ruling will almost surely have extreme consequences. Those consequences wouldn’t provide a reason to misread the text of the law. But they ought to have induced more humility about whether Gorsuch’s reading is in fact right.
As Alito spells out, those consequences extend to whether bathrooms and locker rooms may be sex-specific, whether women’s sports and girls’ sports may be reserved for females, and whether colleges may assign dormitory rooms by sex. Gorsuch doesn’t dispute that such consequences will ensue; he says only that these “are questions for future cases.”
And future legislation.
I see the argument that the decision raises valid legal objections. However, the majority’s ruling was unquestionably the ethical one.