On Monday, the Supreme Court agreed to hear a trio of cases that will allow the justices to decide whether a federal law that prohibits employers from discriminating on the basis of "sex" prohibits discrimination based on sexual orientation or gender identity, too. Oral argument will take place sometime during the Court's next term, which begins in October 2019. And as the Supreme Court's new conservative majority has more opportunities to hear cases like these, the future of LGBTQ equality in this country is suddenly on far shakier ground than you might think.
Wait. It's not already illegal to fire someone because they're gay?
In most cases, no. The principal federal law governing private-sector employment discrimination is Title VII of the Civil Rights Act of 1964, which covers discrimination grounded in one's race, color, religion, sex, and national origin. It is illegal, for example, to fire people because they are black, or to never hire Christian applicants, or to withhold promotions from women but not men. Beginning in the 1980s, a series of Supreme Court decisions held that sexual harassment in the workplace is a form of sex discrimination, too, as a form of "sex stereotyping"—even if the victim doesn't get fired or demoted in the process.
Title VII's text does not, however, separately mention sexual orientation or gender identity. Throughout most of the statute's life, a few federal courts determined that gender identity and sexual orientation are forms of sex discrimination, reasoning that such discrimination is also a form of "sex stereotyping." (This makes a ton of intuitive sense: It's sort of silly to argue that discrimination based on an employee's trans status, for example, has nothing to do with what their employer thinks about sex.)
Many federal courts expressly declined to adopt this perspective, though, while still others never definitively weighed in on the subject. And although many states have enacted their own civil rights acts that offer long lists of protected categories—sexual orientation, physical appearance, political affiliation, marital status, and so on—federal law remains stingy and inconsistent with its guarantees. The result is a messy patchwork of regulation in which the rights of a wronged employee often depend not on what actually happened to them, but instead on where they live. Taking these cases allows the Supreme Court the chance to resolve the issue once and for all.
Have there been any outside-the-courtroom efforts to fix this problem?
Yes. In 2012, the Equal Employment Opportunity Commission—the federal administrative agency charged with interpreting and enforcing antidiscrimination laws—took the position that discrimination based on gender identity is sex discrimination, citing to the same "sex stereotyping" rationale a few federal courts had pioneered in the workplace harassment context. Two years later, then attorney general Eric Holder adopted that view as the Department of Justice's official stance, too.
Both of these developments were welcome ones, but neither carried the force of law, which means that in 2017, then Trump attorney general Jeff Sessions was free to revoke that directive in a two-page memorandum. "Title VII's prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status," he wrote. "The sole issue addressed in this memorandum is what conduct Title VII prohibits by its terms, not what conduct should be prohibited by statute, regulation, or employer action." In other words: If Congress really wants to protect gay and trans people, it is free to pass a law that does so.
Has Congress ever tried to do that?
Yes—a lot, actually. In 1994, the Massachusetts duo of congressman Gerry Studds and senator Ted Kennedy introduced the Employment Non-Discrimination Act, a bill that would extend Title VII's framework to sexual orientation and gender identity. It came close to enactment as recently as 2014, when a handful of Republicans joined with a then Democratic Senate to approve a version of the ENDA, 64-32. The bill died a few days later in the Republican-controlled House, however; Sessions, then a senator from Alabama, was among the lawmakers who voted against it.
What is the Supreme Court likely to do here?
The Court's most recent landmark LGBTQ-rights case was the 2015 decision in Obergefell v. Hodges, in which a 5-4 majority held that the Fourteenth Amendment guarantees the fundamental right to marry to individuals of the same sex. That case split cleanly along ideological lines, and so it was Anthony Kennedy, the Court's longtime "swing justice," who cast the deciding vote. Concluding his majority opinion, Kennedy famously wrote that in asking for the right to marry, same-sex couples "ask for equal dignity in the eyes of the law. The Constitution grants them that right."
Kennedy, of course, has since retired from the bench, and in his seat sits Justice Brett Kavanaugh, whose presence on the Court cements a firm five-justice conservative majority for the foreseeable future. His record on LGBTQ issues during his time as a federal appeals judge is relatively sparse. What we know about his stances on other hot-button social issues of great importance to the conservative movement—a woman's right to choose, for example, of which Justice Kennedy was also a reliable defender in close cases—is not especially encouraging.
Kavanaugh also describes himself as a textualist, which means he takes a cautious, narrow approach to interpreting both the Constitution and the language of the statutes Congress enacts. Again, since Title VII does not expressly cover sexual orientation or gender identity, his judicial philosophy makes him unlikely to embrace a more expansive reading of that provision's text. At the very least, Kavanaugh sits well to the right of the justice he replaced—and whose vote was often what prevented the right-wingers from getting the result for which they hoped.
"In my workplace, I hire people because of their talents and abilities," said Kavanaugh during his confirmation hearings, after New Jersey senator Cory Booker asked whether it is morally acceptable to fire someone because of their sexual orientation. But as is typical for Supreme Court nominees, he declined to go into further detail or signal how he might rule, citing to the very litigation that will now come before him next year. When Booker brought up the freedom to marry, Kavanaugh responded, "The law of the land protects that right, as dictated by the Supreme Court and the precedent of the Supreme Court." This answer elides the obvious fact that as a Supreme Court justice, Kavanaugh is one of nine people on the planet capable of narrowing or reversing the Court's precedents, should the opportunity ever present itself.
If the Court were to suddenly decide that "sex stereotyping" is not enough to protect gay people from discrimination, wouldn't such a ruling necessarily call into question decades of precedent in which that same rationale has been used to prohibit sexual harassment in the workplace, too?
What's the best-case scenario?
The Court issues a narrow, technical ruling, as it did last year in the much-hyped Colorado wedding-cake case, sidestepping the substantive issue and allowing an imperfect status quo to stand. In the alternative, Chief Justice John Roberts cares deeply about maintaining the Court's credibility in the eyes of the public, and has occasionally sided with the Court's liberal bloc when deciding hard questions—in 2012, for example, he was the surprise swing vote who upheld the constitutionality of the Affordable Care Act. If Roberts decides that it would be a bad look for his Court to impose a de facto denial of civil rights protections to sexual minorities, perhaps he'll once again find a reason to break with his conservative colleagues for the sake of the institution's reputation.
How likely is Roberts to join the liberal justices in this context?
Considering that he joined the dissenters in Obergefell, and suggested that the right to same-sex marriage might one day be used to legalize polygamous marriages, too? It doesn't seem likely.
What's the worst-case scenario?
Right now, at least, federal law protects gay and trans Americans from employment discrimination in some states, which is (1) definitely not ideal and (2) still better than a world in which federal law protects gay and trans Americans from employment discrimination in no states. By pushing the question before this conservative Supreme Court, anti-LGBTQ activists might succeed in wiping out even these limited protections. Unless Congress were to pass a law overturning such a finding—which, under President Trump and Senate Majority Leader Mitch McConnell, is not going to happen—this new interpretation of Title VII would keep victims of homophobia-induced discrimination locked out of federal courtrooms for good.