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Justice Gorsuch emerges as an unlikely swing vote in the LGBTQ discrimination cases

Trump’s first justice may set his politics aside to rule in favor of workers who claim they were fired for being gay or trans.

Supreme Court Justice Neil Gorsuch in his chambers in Washington, DC.
Supreme Court Justice Neil Gorsuch.
Bill O’Leary/The Washington Post via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Justice Neil Gorsuch, the archconservative Trump appointee, may end up deciding the future of LGBTQ rights in the workplace.

At least, that was the impression that emerged after arguments in three cases the Supreme Court heard on Tuesday, where Gorsuch appeared to be the swing vote. Two of those cases, Altitude Express Inc. v. Zarda and Bostock v. Clayton County, ask whether a worker can be fired for their sexual orientation. The third, R.G. & G.R. Harris Funeral Homes v. EEOC, asks whether a worker can be fired because of their gender identity.

The central tension in these three cases arises from the fact that the text of a federal civil rights law — Title VII of the Civil Rights Act of 1964 — is written expansively, so expansively that even Gorsuch seemed to acknowledge at some points during Tuesday’s oral argument that the text of the law favors a victory for the gay and trans plaintiffs.

At the same time, justices across the political spectrum acknowledged that Congress almost certainly did not intend to ban anti-LGBTQ discrimination when it enacted Title VII. Indeed, the very first question in the two hours of oral arguments came from Justice Ruth Bader Ginsburg, who asked how her Court should deal with the fact that Congress did not have such discrimination in mind when it enacted this law.

Gorsuch, for his part, has longed claimed to be a “textualist” — meaning that he believes that the meaning of the law should turn on its words and not on what Congress thought it was doing. Tuesday’s arguments suggest that he may be an honest textualist in this case, although it is far from certain how he will vote.

The tension between the text of the law and Congress’ intent

Title VII prohibits employment discrimination that occurs “because of [an employee’s] race, color, religion, sex, or national origin.” As Justice Elena Kagan, the Court’s leading liberal textualist, explained at one point during the argument, this language is broad and it suggests that a simple test should apply in sex discrimination cases.

A plaintiff in such a case should prevail, says Kagan, unless they would have experienced the exact same treatment if they “were a different sex.”

Under this textualist standard, the plainitiffs should prevail. A gay man is a man who wants to form romantic and sexual attachments with other men. But presumably the employers in these cases would allow women to form such attachments with men — and thus these employers allegedly treated these male plaintiffs differently than they would women.

Similarly, the defendant in Harris Funeral Homes, the trans discrimination case, tried to force their former employee Aimee Stephens, a trans woman, to comply with her boss’s understanding of how a man should dress and act in order to keep her job.

Competing against this textualist argument is the fact that the plaintiffs’ arguments in these cases would surprise the lawmakers who drafted and enacted Title VII. Several justices, including some of the liberal justices, pointed to this tension early in the oral argument. In Justice Stephen Breyer’s words, “Congress wouldn’t have dreamt of this.”

At several points during the arguments, however, Gorsuch indicated that he may see these cases in the same way that Kagan sees them. When Jeffery Harris, the lawyer arguing for the employers in the gay discrimination cases, asserted that discrimination on the basis of sexual orientation is entirely separate from sex discrimination, Gorsuch balked. “Isn’t sex also in play here, and isn’t that enough?” the conservative judge asked.

The gay rights cases, in Gorsuch’s words, are about “a man who likes other men,” and he suggested that that’s enough to make them cases about illegal sex discrimination.

The Court may reach different results on sexual orientation and gender identity

While there seems to be a decent chance that the gay plaintiffs will be able to assemble five votes for their position, Ms. Stephens may struggle to find a majority.

Despite Gorsuch’s textualist leanings, his questions in Harris Funeral Homes hewed to the most contentious issues that arise in the trans rights context: bathrooms, dress codes, and sports.

While Pam Karlan, the lawyer for the gay plaintiffs, was at the podium, Gorsuch skipped ahead to questions about whether trans workers have to comply with sex-specific dress codes — placing Karlan in the awkward position of suggesting that maybe he should ask those questions to a lawyer who actually represents a trans client.

Later, when David Cole — Aimee Stephens’ lawyer — did take the podium, Gorsuch returned to this theme. For “something as drastic” as bathrooms and dress codes, he suggested, maybe the Court should show “judicial modesty” when “interpreting statutes that are really old.”

Gorsuch said that he thought Stephens’s case is “really close” as a matter of textualism, but perhaps the Court should be reluctant to rule in her favor to avoid “massive social upheaval.”

Without Gorusch’s vote, it will be difficult for Stephens to get five votes. Roberts seemed unsympathetic to all three of the plaintiffs. He even struggled with trans pronouns — at one point referring to a trans woman as “he ... he or she.” Several of Roberts’s questions focused on the impact a victory for the plaintiffs could have on religious conservatives who object to gay or trans workers.

Justice Samuel Alito, meanwhile, appeared convinced by the argument that these cases involve a “big policy issue” that was different from the one Congress thought it resolved in 1964. Alito appeared satisfied with the argument that Congress did not intend to ban anti-LGBTQ discrimination in 1964 and that this intention should resolve the case.

Justice Clarence Thomas, as is typically his practice, was silent. Justice Brett Kavanaugh, the fifth member of the Court’s Republican majority, asked one very vague question that didn’t reveal much about how he views the cases.

So, if the four liberals hang together — and they spent the bulk of their questions grilling the lawyers arguing against a broad reading of Title VII — that at least gives the gay plaintiffs a chance at victory.

And if the plaintiffs do manage to eke out a victory, it’s likely to happen because one of the Court’s most conservative members concluded that he must honor the text of the law.

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