How Will Each Supreme Court Justice Vote in These Historic LGBTQ+ Rights Cases?
On Tuesday, Oct. 8, the Supreme Court heard — but didn't yet decide — three cases that could have historic implications for LGBTQ+ identifying folks and workplace discrimination. Bostock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G. and G.R. Harris Funeral Homes v. EEOC challenge whether an employee who believes they were unfairly treated or fired because of their identity as LGBTQ+ are protected under the Title XII clause of the 1964 Civil Rights Act, which outlaws workplace discrimination based on sex. If the Supreme Court decides they aren't, LGBTQ+ folks would lose their only legal protection against identity-based employment discrimination and could be fired — legally — for innate parts of their identity. (Currently, the only legislation regarding LGBTQ+ employment rights is stalled in the Senate.)
In the Bostock and Zarda cases, Donald Zarda, a skydiving instructor, and Gerald Bostock who worked as a child welfare service coordinator, both claim they were fired because of their sexuality. Bostock claims joining a gay recreational softball league led to his firing; county officials claim it was because he mismanaged funds. Skydive instructor Donald Zarda, who passed away in 2014 in a base-jumping accident, told a customer in a 2010 skydiving lesson that she shouldn't worry about being so close together because he was gay. Afterward, the customer's boyfriend complained the experience was uncomfortable for her and that Zarda had inappropriately touched her during the lesson and used his sexual orientation as an excuse. Shortly after, Zarda was fired for his behavior, but Zarda denies he ever touched the customer inappropriately and claims his firing was because of the customer's, and employer's, homophobic views.
In the case of R.G. and G.R. Harris Funeral Homes, Aimee Stevens — a transgender woman — was fired in 2013 from the funeral home after presenting her employer with a letter coming out as trans and explaining why her decision to embrace her identity as a woman was necessary. Two weeks after presenting the letter and coming to work dressed in femme clothing, Stephens was fired for breaking the dress code, or, as Harris Funeral Homes argued: "he wanted to dress like a woman." Stephens and her lawyers instead point to the funeral home's sexist policies of forcing Aimee Stephens to adhere to an stereotype of how someone assigned male at birth should dress, as the reason she was fired.
Zarda and Bostock's cases were argued together, but separate, from Aimee Stephens' case. Each of these cases have gained national attention by LGBTQ+ activists and their opponents. The Trump administration even filed a amicus brief urging the court not to include discrimination based on sexuality and gender expression under Title XII's definition of sex-based discrimination. Stefan Vogler, a postdoctoral fellow at Northwestern University's Center for Legal Studies, spoke to POPSUGAR about the cases and offered some background that could help us anticipate what the future looks like for LGBTQ+ rights. While The Supreme Court is not expected to release its decisions on these cases until June of 2020, we took a look at how each of the current justices analyzed these cases in oral arguments, what their previous rulings and decisions could tell us about their opinions on these cases, and how you can make your voice heard before they rule.
John G. Roberts Jr.
Chief Justice John G. Roberts Jr. is known for running a court based on judicial restraint. Vogler told POPSUGAR that when Justice Kennedy — who was the decisive swing vote on several 5-4 decisions dealing with LGBTQ+ rights — left the court in 2018, Roberts became the new "ideological center" of the court.
During oral arguments, Roberts repeatedly pointed out Aimee Stephens's firing for a dress code violation only became discriminatory in the context that Aimee is a transgender woman. That discrimination, according to Roberts, was based based on gender identity, not just sex. Based on these comments, Roberts most likely believes protections against discrimination because of sex in Title XII is not inclusive of discrimination based on sexuality or gender expression. As Roberts has broadly avoided rewriting laws or precedent, shown by his strong worded dissent in the Obergefell v. Hayes case legalizing gay marriage, his decision will most likely focus on his interpretation of the literal meaning and wording of Title XII and rule against the plaintiffs.
Nominated to the court during the Obama administration, 59-year-old Justice Elena Kagan is one of the youngest SCOTUS justices. During oral arguments for the Aimee Stephens case, Kagan made her opinion known. "Ms. Stephens was being treated differently because of her sex. And this was Judge Flaum's point in — in that opinion, is that it's as simple as looking at the language of the statute, applying it to a particular individual, which Title VII insists that you do, and coming up with the obvious answer," Kagan said. "If she had not been assigned at birth the sex that she was assigned at birth, she would have been treated differently."
In the Bostock and Zarda case, Kagan in conversation with the lawyer representing the employer asked: "Did you discriminate against somebody, against her client, because of sex? Yes, you did. Because you fired the person because this was a man who loved other men."
Based on Kagan's comments and support of LGBTQ+ rights in the past, we can assume that she will most likely side with the plaintiffs in finding that they were discriminated against based on their sex — not just their status as a transgender woman in the case of Stephens, or sexuality in the case of Bostock and Zarda.
Appointed by Trump in 2018, Justice Neil Gorsuch had already established himself as a conservative, if not libertarian, judge focussed on preserving individual freedoms — religious or otherwise — during his tenure on the 10th Circuit Court of Appeals. Gorsuch has often authored opinions protecting citizen and corporation's right to express and maintain their religious views in all aspects of their business. This includes arguing it was Hobby Lobby's religious right to refuse to provide coverage for contraception in their employee healthcare policy. In fact, Gorsuch even argued more individual business owners should exercise a similar philosophy of aligning religious beliefs with their business policies. This focus on protecting religious freedom could mean Gorsuch would support companies in choosing not to employ LGBTQ+ employees if they cited religious beliefs as a reason.
During oral arguments, Gorsuch seemed to see the arguments from both sides. At one point, he told the plaintiff's lawyer in the Aimee Stephens case that he was "with him on the textual evidence" that the use of sex in Title XII could be applied to include protection against discrimination based on gender. But he also wondered whether such an inclusion "could create social upheaval" in regards to people who appose LGBTQ+ lifestyles for religious reasons. When Aimee Stephens's lawyer David Cole responded that recognizing discrimination against trans folks as sex discrimination was simply continuing years of precedent set by federal appeal courts, Gorsuch simply repeated his question as if Mr. Cole had not addressed it.
At first glance, Gorsuch's dedication to Title XII's original intent and literal meaning, otherwise known as textualism, may seem like it was swaying him to the side of the plaintiff. Still, Vogler explained that textualism will likely not be to the benefit of the plaintiffs. "It really depends on whether they [The Supreme Court] buy the arguments that the plaintiff's lawyers put forward, which is that this is about discrimination because of the sex they were assigned in the case of the trans case, or because of who they were in a relationship with in the case of the [Bostock and Zarda] case." Vogler anticipates that if textualism is a part of Gorsuch's decision, it will most likely be used to argue Title XII's use of sex was not intended to mean gender identity or sexual orientation when it was written, and the court isn't going to expand it to include these identities now.
Stephen G. Breyer
Deciding with the majority on almost 92% of cases, it's hard to place Justice Stephen G. Breyer on any side of the political spectrum. His judicial philosophy revolves largely around his anti-originalist approach to interpreting the Constitution. Instead of taking the Constitution at its word, Breyer prefers to consider the broad, underlying principles that inspired it, arguing that its authors used broad language purposefully so the Constitution could be adaptable over time.
During the oral arguments section of Aimee Stephens's case, Breyer shared his views on the underlying intentions of Civil Rights Act of 1964 and Title XII's anti-discrimination clause. "These statutes were all part of a civil rights movement that was designed to give, include in our society, people who had been truly discriminated against for the worst reasons. And at that time, this civil rights statute, when it was passed, would have put in the category gay people, transgender people, a people who were suffering terrible discrimination," Breyer said. "And now, doesn't that fact, which is an overwhelming fact to me about the nature of the country under law, argue that that's a change. That's a change that both explains why they didn't put it in initially and explains why we should, other things being equal, interpret it to include gay people and transgender people now?"
Similar to Kagan, Breyer seems to be interpreting the original intention of Title XII in the context of its inclusion within the Civil Rights Act. While LGBTQ+ identities were not explicitly stated within Title XII protection, Breyer argues that they are implicitly included as part of marginalized communities the Civil Rights Act was intended to protect.
Samuel Alito Jr.
Justice Samuel Alito Jr., appointed by President Bush in 2006, is one of the more conservative judges on the court and has consistently taken the conservative viewpoint on cases dealing with ideological issues such as abortion, campaign finance, gun control, and religious freedom. Similar to Gorsuch, he has strong views on cases dealing with religious freedoms and has expressed concern that the U.S. is moving away from its original support of religious freedom. During a 2017 speech sponsored by a Catholic Lawyer's association, Alito said "A wind is picking up that is hostile to those with traditional moral beliefs . . . It is up to all of us to evangelize our fellow Americans about the issue of religious freedom."
In the cases argued on Oct. 8, Vogler said it's easy to predict how Alito may view the issue of Title XII. "He is interpreting sex to mean that when they passed Title [XII] they meant it very specifically to mean, this is about biological sex, not about gender identity. And from that perspective, he thinks the Supreme Court would essentially be writing new law if it said that Title [XII] protected LGBTQ people. Because gender identity or sexual orientation aren't explicitly named in the law."
With this in mind, Alito, much like Justice Roberts, is not likely to issue a decision he believes upsets the original intention of the law. Alito will most likely rule against the plaintiff.
Justice Clarence Thomas was not present for oral arguments on Oct. 8 due to illness. Thomas will still decide on the case and will most likely side with the conservative view point.
Thomas, like the other more conservative judges, is someone dedicated to upholding the original intent of legislation and the Constitution and has voted against LGBTQ+ rights in the past.
Ruth Bader Ginsburg
One of the more liberal and humanitarian focused justices on the court, Justice Ruth Bader Ginsburg is known for her willingness to stand up for the issues she believes in — especially when it comes to gender. Cases focused on gender discrimination, after all, drove her early career success. In the case of Obergefell v. Hayes, Ginsburg ruthlessly questioned the lawyer apposing the legalization of gay marriage explaining that the foundation of marriage was nothing to cling to. Ginsburg has never been one to cling to the past, and similar to Justice Breyer, prefers to interpret the Constitution based on its broader underlying principles of individual freedoms and equality.
In the cases argued on Oct. 8, Ginsburg maintained herself as an advocate of LGBTQ+ rights. During oral arguments in the Aimee Stephens case, Ginsburg brought up the point that claims of sexual harassment have been incorporated under the Title XII definition of discrimination based on sex, even though the concept of sexual harassment had not been established until almost a decade after Title XII was passed.
"I think the point Ginsburg is trying to make there, is that sexual harassment was not something that was originally outlined in Title [XII]," Vogler told POPSUGAR. "I think we can predict that Ginsburg is probably going to be on the plaintiff side here based on her past decisions and behaviors."
Brett M. Kavanaugh
Supreme Court Justice Brett M. Kavanuagh, who was nominated by Donald Trump and confirmed to the court in October of 2018 after being accused of sexual assault by Dr. Christine Blasey Ford, had little to say during oral arguments.
The recent appointee has been unclear on his opinions in regards to LGBTQ+ issues or his approach to his Supreme Court duties in general. While other justices have established a track record and general understanding of how they approach their interpretation of the Constitution, Kavanaugh's lack of experience means his decision in this case is truly up in the air. Looking to his history on the DC Court of Appeals, Kavanaugh has a foggy history in regards to religious freedom but has often come out on the side of employers and individuals seeking to exercise their right to religious freedom. While the employers in this case did not claim they fired any of the plaintiffs for any religious reasons during oral arguments, it's worth noting that many employers who have fired LGBTQ+ people in the past have argued their decisions were motivated by religious beliefs.
With our knowledge of Kavanaugh's support of religious freedom, it is expected that he will side with judges with more conservative view points such as Alito and Roberts.
Appointed during the Obama administration, Justice Sonia Sotomayor is one of the more liberal votes on the court.
Ruling in favor of the legalization of gay marriage in Obergefell v. Hayes, Sotomayor has become known for her pragmatic focus and tendency to consider the real-world effects of the cases presented to the Supreme Court. She is not an originalist like the conservative judges on the court and made her views clear during the arguments. During the Aimee Stephens case, Sotomayor often spoke up to point out how in her logic, discrimination based on sexual orientation or gender expression could also be considered discrimination based on sex.
"I think Justice Breyer was right that Title VII, the Civil Rights Act, all of our acts were born from the desire to ensure that we treated people equally and not on the basis of invidious reasons," Sotomayor said. "At what point does a court say, Congress spoke about this, the original Congress who wrote this statute told us what they meant. They used clear words. And regardless of what others may have thought over time, it's very clear that what's happening fits those words. At what point do we say we have to step in?"
How You Can Make Your Voice Heard
Many experts believe both of these landmark cases may be decided by 5-4 votes — but in which direction is unclear. Based on comments alone, we can assume that Justices Breyer, Ginsburg, Kagan, and Sotomayor will all most likely rule in favor of the plaintiffs and interpret Title XII of the Civil Right's Act to include protections for LGBTQ+ folks under its definition of discrimination based on sex. On the other side, Justices Roberts, Alito, and Thomas will most likely rule in favor of the employers. What about Justices Gorsuch and Kavanaugh? As both have little experience with cases dealing with LGBTQ+ issues, most analysis has focussed on their history of supporting religious freedoms and staunch originalist approach in the case of Gorsuch, to suggest they may side with the employers, but this is not for certain. Both justices were appointed by Trump, whose administration has made its position on this matter clear.
It's important not to forget the human stories rulings such as these will effect. Just consider the picture above, taken in the room when the 1964 Civil Rights Act was signed. Looking at the photo, it's obvious why there was no mention of protections of LGBTQ+ identities; the room is full of white cis-gendered straight-(presenting) men! Similarly, many of the Justices showed a distinct lack of understanding, if not empathy, when analyzing the current cases before them. Kagan at one point referred to "transgendered" people, Gorsuch worried providing basic protections to LGBTQ+ folk would not be worth the "social upheaval" it may cause, and for some reason, each justice kept changing the topic to what bathrooms trans folk should be allowed to use. In their arguments, the current justices consistently describe trans folk as if they are are walking contradictions that stand out wherever they are. In reality, invisibility and passing is a way of survival for most "transgendered" people and will become even more important if the justices decide Title XII does not protect LGBTQ+ identifying individuals in the workplace.
Both of these cases, if decided against the employees, will end up vindicating employers with transphobic and or homophobic views while denying LGBTQ+ folks basic human rights. If you would like to make your voice heard, this link provides detailed instructions on how you can write a letter to a specific Supreme Court Justice. If you have the time, I urge you to take action. You can also support through donation to organizations advocating for the rights and equal treatment of LGBTQ+ folk. This link will take you to an article listing 15 trans rights organizations you can donate to. You can also donate to the ACLU here, who represented both Aimee Stephens and Donald Zadar at the Supreme Court.
If you are a person who identifies as LGBTQ+ and are in need of information regarding your legal rights, this link will take you to the National Center for Transgender Equalities employment legal resource page.