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    Ann Rostow: Did That Really Happen?

    By Ann Rostow–

    Did That Really Happen?

    This one was bigger than marriage equality. You know what I’m talking about, right? Do I really have to write a lead sentence announcing the Supreme Court’s Title VII ruling? No, I thought not. 

    On Monday, June 15, when the Court’s jaw-dropping 6–3 GLBT workplace discrimination victory was announced, many commentators agreed that the opinion was the most consequential in our civil rights history. Marriage equality only helped committed gay and lesbian couples, they all reasoned. But workplace discrimination affects everyone with a job! Really? Who sent that simplistic yodel through the cable news echo chamber? It’s true that the Title VII ruling eclipses the marriage decision, but that fact is a matter of law and has nothing to do with a head count of how many individuals might benefit. 

    For one thing, let’s not forget that while gays and lesbians have enjoyed the Supreme limelight, this is the first transgender rights victory out of the nine justices. 

    More importantly, although Justice Anthony Kennedy’s 2015 marriage opinion had profound consequences in many of our lives, he wrote it up in vague terms that did little to advance our legal status going forward. Like his previous gay rights decisions, Kennedy hedged his bets and left plenty of room for conservative courts to reimagine his intent. He wrapped his conclusions in warm fuzzy words of dignified blather, while dodging important legal questions—in particular, the key question of whether or not gays should be treated as a protected class under constitutional law. He was happy to save us from social harm, but reluctant to lift us up to true equality.

    Well, Kennedy’s off the bench, and astonishingly, it fell to my second-least-favorite justice, Neil Gorsuch, to secure our future. (I have officially raised Gorsuch to an unspecified higher status. Alito remains at the bottom of my list.) You won’t find any happy talk about gay or trans people in his fairly short opinion. Instead, you will find an explicit declaration that both sexual orientation and gender identity bias are a form of sex discrimination. Sex discrimination, in turn, is outlawed in countless federal statutes, and perhaps more importantly, sex discrimination is subjected to heightened (intermediate) scrutiny under constitutional law. 

    Although Gorsuch’s opinion came in the context of Title VII’s workplace coverage, it arguably applies throughout the federal law books. As for our long-sought status as a protected class, we are all now effectively recognized as such. Our adversaries will certainly contest these implications in court, arguing that Gorsuch’s words apply only to one section of one law, but they will lose thanks to Gorsuch’s clean, definitive reasoning. Make no mistake, this is the beginning of the end of GLBT discrimination in our country. 

    So Glad to Be So Wrong

    I suppose I should grovel a bit for my complete failure to anticipate this victory. The best I thought we’d get was a narrow opinion by John Roberts, which would be easily twisted into an anti-gay weapon by our legal foes. I also thought we might get one of those complicated plurality rulings, with several separate opinions and a stirring Ginsburg dissent. The last thing I expected was for Gorsuch to take the lead and for the Chief to go along for the ride. Up until now, Gorsuch has shown zero affinity for GLBT legal arguments. To the contrary. He has also been noted for a pretentious, flowery writing style, which was not in evidence last week. 

    At oral arguments last October, several analysts pointed out that Gorsuch, a “textualist” concerned with the exact language of the law, probed the antigay lawyers on the definition of sex. Would Gorsuch perhaps swing to the liberal side in view of his affection for legal wording, observers wondered?

    Nonsense, I scoffed to anyone who would read or listen to me. After all, it was Gorsuch who mused that a decision in favor of the transgender plaintiff might cause “massive social upheaval.” Did he not realize that courts have been ruling in favor of transgender Title VII plaintiffs for years? As for his questions about the wording of the law, I dismissively chalked that up to his delight in hearing himself bloviate from the bench. 

    I’m so sorry, Neil. And I apologize to you as well, dear Reader. 

    If I am honest, I don’t completely agree with the Gorsuch reasoning, which is partly why I never guessed it would hold sway. Don’t get me wrong. I think sexual orientation and gender identity are definitely a subsection of “sex” when it comes to civil rights law. The Court had already ruled 30 years ago that when you disfavor a man or a woman because he or she does not live up to your stereotype of how a man or woman should behave, you discriminate on the basis of sex. Surely both transgender and gay men and women defy traditional gender roles, and surely their mistreatment therefore violates laws on sex discrimination.

    But Gorsuch ignored this obvious precedent and went for the logician’s rationale. If Mary and Tim are both attracted to males, he figured, their employer discriminates if he treats Tim badly because Tim is male. If John and Jane were both born male, the employer discriminates when he treats Jane badly because Jane is female. The fact that Tim is gay or Jane is trans makes no difference, because the law forbids sex discrimination regardless of whether other types of bias are in evidence. 

    I could write a lengthy section on whether we are best served by what feels to me like a semantic gimmick here, but please stop me before I start. Whatever frigging works, for God’s sake! Plus, as I said before, the clarity of Gorsuch’s opinion is one of its great strengths. He kept it simple, which makes it much more difficult to distort.

    So, What Now? 

    What now? Well, we can expect to spend a lot of time in court. The High Court has said that sex discrimination includes GLBT bias in the workplace. Oh, but but but, our adversaries will bleat. That doesn’t mean sex discrimination includes GLBT bias in education! Um, yes it does, but we’ll have to slog through obvious legal arguments to prove it. 

    The same goes for the many other areas where sex discrimination is illegal. Do you remember that the Trump administration recently formalized a policy to exclude transgender citizens from Obama Care’s ban on sex discrimination in health care? Now, that effort has effectively been struck down by the justices, but again, we will have to enforce that in court. Lambda Legal has already filed a lawsuit against Trump and company in the wake of the High Court’s opinion. 

    Justice Gorsuch also pointed out that his decision came in a certain context:

    “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind,” he wrote. “The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’” 

    It’s not hard to imagine how our legal enemies will attempt to deploy that passage. Title IX of the Education Amendments of 1972 bans sex discrimination in public schools and universities. Now, as a consequence of our Title VII decision, it also bans GLBT discrimination, which means that schools may not send trans students into special facilities. So, although Gorsuch didn’t specifically “address bathrooms, locker rooms or anything else of that kind,” he nonetheless effectively outlawed discrimination in public schools. But we’ll have to keep filing the lawsuits in order to make that point.   

    Gorsuch also finessed the matter of “religious freedom,” noting that none of the employers in the Title VII cases raised the issue, and reminding us that the Religious Freedom Restoration Act (RFRA) already protects religious employers and in some cases “might supersede Title VII’s commands.” Again, you can be sure that anti-GLBT litigants will be throwing these disclaimers around like confetti in an effort to distract judges from the key conclusions. 

    Yet in the famed Hobby Lobby case, Justice Alito made clear that the RFRA could not trump race-based and other civil rights laws. Now, GLBT plaintiffs can argue that our civil rights have the same protections against faith-based employers as well. If a company can’t ban Black employees based on “faith,” neither can they ban women or GLBT workers. 

    But there’s more! Keep in mind that public accommodation laws do not cover “sex discrimination.” All those wedding cake-type lawsuits loom ahead, which is where we will benefit from the constitutional advantages we just received. The category of sex discrimination is considered a quasi-suspect classification and is subjected to heightened scrutiny under the Equal Protection Clause. Can a city enact a “religious freedom” ordinance that allows the local baker to pick and choose his or her clients? Not in theory.

    Let’s just say, however, that here we will be obliged to prove our cases over and over again. That’s the bad news. The good news is that the Supreme Court has spoken in no uncertain terms and instead of a lost generation of lawyers fighting uphill battles, we have the wind at our back and a glide path to success.

    I should add that we will no doubt encounter dozens of weird Trump judges as we traverse the federal bench. Not only are they conservative, but also a number of them are underqualified ideologues. Yet most of these future cases will reach the appellate courts, where we have a better chance of avoiding these oddballs. And, of course, the final arbiter will be the Supreme Court itself, which would be unlikely to undermine its own ruling a few years down the road.

    And Another Thing

    It feels a bit strange to devote an entire column to GLBT legal news when our country is simultaneously united in solidarity and isolated by contagion; experiencing an historic period of enlightenment, outrage, and fear. Our confidence in the near future has been replaced by uncertainty and hopefulness. We sense America’s plate tectonics shifting.

    But I’m doing it anyway.

    There were several other notable elements of the decision. For one thing, the Court combined all three lawsuits into one opinion, even as the trans case and the two gay cases were argued separately. Many of us worried that the Court might split the difference, ruling that gay employees were protected in one opinion but transgender workers were not in a separate ruling. Or vice versa. Instead, the justices did what our own community took years to accomplish. They put the T into GLBT and treated us all as one.

    Second, how odd was it that none of the four liberals wrote a concurrence? Much as I would have enjoyed reading a full-throated paean to GLBT equality from Ginsburg or Sotomayor, a second opinion would have diminished the Gorsuch opinion by comparison. Instead, we saw a united six-justice majority, with two dissenters (Alito and Kavanaugh), who themselves could not agree on a common argument.

    Finally, what do we make of Chief Justice John Roberts, the man who five years ago wrote in strong opposition to marriage equality? Not only did he join the majority, but he also assigned the opinion to Gorsuch, which I’m guessing was the key to coming up with the solidarity from the six justices. Don’t underestimate the difference between a 5–4 vote and a 6–3 vote. The first is a split verdict. The second is a consensus.

    In a recent article, CNN’s legal analyst Joan Biskupic quoted the Chief, comparing the legacies of Chief Justice John Marshall—the man who defined and consolidated the power of the third branch of government—and the racist Roger Taney, who presided over the Dred Scott Court. 

    “You wonder if you’re going to be John Marshall or you’re going to be Roger Taney,” Roberts had said. “The answer is, of course, you are certainly not going to be John Marshall. But you want to avoid the danger of being Roger Taney.”

    I’d bet dollars to donuts that it was to avoid the danger of being Roger Taney that John Roberts led the Court to this decision, with full knowledge of where it would lead.

    Published on June 25, 2020