SCOTUS Oral Argument Recap: Is Justice Gorsuch the swing vote on LGBT workplace rights?

After reading 133 pages of transcripts from yesterday’s two (1, 2) oral arguments in the three LGBT workplace rights cases pending before the Supreme Court, three things are clear to me:

First, the four ‘liberal’ justices (Kagan, Breyer, Ginsburg, Sotomayor) will conclude that Title VII of the Civil Rights Act of 1964 forbids discrimination based on sexual orientation and gender identity, both of which are included in Title VII’s current ban on discrimination ‘because of sex.’

For example, during the first oral argument in the Bostock v. Clayton County and Zarda v. Altitude Express, Inc. cases, Justice Breyer told counsel for Bostock and Zarda that the specific behavior of a man dating a man “fits” within the language of Title VII. Justice Sotomayor confirmed that “homosexual orientation is highly correlated to people’s stereotypes.” (The Supreme Court in Price Waterhouse v. Hopkins confirmed that sex stereotyping violates Title VII). Justice Kagan viewed Title VII as a “statute about individuals…and whether individuals are being treated differently because of his or her sex.” Aimee Stephens, the respondent in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc, is arguing that the company fired her for changing her sex. Justice Ginsburg noted that, while sexual orientation and gender identity do not appear expressly in the text of Title VII,  neither does “sexual harassment.” However, we know now that sexual harassment is illegal. Because the Supreme Court said so.

Second, Justice Alito isn’t going to be swayed.

Justice Alito is what we call a textualist. In plain English, the law means what it says. Title VII says no discrimination “because of sex.” And Justice Alito told counsel for Bostock and Zarda, “You’re trying to change the meaning of what Congress understood sex to mean and what everybody understood.” So, I doubt that he’s going to write “sexual orientation” or “gender identity” into the statute. Rather, Justice Alito would leave that up to Congress.

Chief Justice Roberts was less obvious but appeared to be going in the same direction. During the Bostock/Zarda oral argument, he cited [Seventh Circuit] Judge Posner’s statement about how adjudicating these issues would “avoid placing the entire burden of updating old statutes on the legislative branch.” He also noted that 23 states have already passed laws dealing with these issues. The implication being: why can’t the feds do the same thing?

Justice Kavanaugh kept his cards pretty close to the vest. He asked two questions, which was to counsel for Clayton County and Altitude Express, Inc., “Are you drawing a distinction between the literal meaning of ‘because of sex’ and the ordinary meaning of ‘because of sex’? And if so, how are we supposed to think about ordinary meaning in this case?” Make what you will of that.

As for Justice Thomas, pulllleeease! He never asks questions at oral argument. Well, almost never.

Third, the swing vote isn’t who you may think it is. It’s Justice Gorsuch. And Justice Gorsuch is conflicted on this issue.

Before he was Justice Gorsuch, he was Judge Gorsuch, a Tenth Circuit Court of Appeals judge. Judge Gorsuch didn’t have many employment law decisions. But, he did have this one, a real scorching opinion about how the Americans with Disabilities Act is not intended to be a leave-accommodation statute. That’s the Family and Medical Leave Act, which explicitly provides for “leave” in the language of the FMLA.

Yes, many consider Justice Gorsuch a textualist. So, if Title VII doesn’t say anything about sexual orientation or gender identity, this is a slam dunk for him, right?

Well, not so fast.

During the Bostock/Zarda oral argument, Justice Gorsuch struggled to parse ‘sexual orientation’ from ‘sex,’ suggesting that “sex [is] also in play” when we’re talking about sexual orientation. He went on to ask counsel for the companies two telling questions,

“[I]n what linguistic formulation … would one say that sex, biological gender, has nothing to do with what happened in this case?”

“Wouldn’t — wouldn’t the employer maybe say [the employer took an adverse action] because this was — this person was a man who likes other men? And isn’t that first part sex?“

And, during the Harris Funeral Homes oral argument, Justice Gorsuch cited appellate court judges on both sides of the issue, three times calling it “close.”

So, what do you think?

The briefs are in and oral argument is over. Will the Supreme Court conclude that Title VII forbids discrimination based on sexual orientation, gender identity, or both? Email me and let me know what you think.