On Tuesday, the Supreme Court commenced hearings over what is perhaps the most consequential LGBTQ protection legislation in history, considering first set of LGBTQ cases to make its way to the court since the retirement of Justice Anthony Kennedy, who was replaced by Justice Brett Kavanaugh. One case considers the story of a plaintiff who had been fired by his employer for saying that he was 100% gay while being strapped to female skydiver., while another case is more straightforward in the sense that someone alleges to have been fired for being openly gay.
Despite the fact that conservative judges outnumber the more liberal ones on the bench, several news outlets felt that Justice Neil Gorsuch might end up ruling in favor of trans and queer Americans and become a critical swing vote. “Isn’t sex also in play here, and isn’t that enough?” he asked at the hearing. His question suggests that he is still hewing to a conservative reading of the Constitution, but is considering things like whether discriminating against a man simply because he is attracted to a man is unfair in the context of heterosexual relationships or whether anyone who identifies as a woman can be turned away for employment because of the way she dresses.; after all, Title Vii of the Civil Rights Act of 1964 makes illegal the discrimination of employees on the basis of sex.
It’s ridiculous to have to spell out whether the Civil Rights Act of 1964 doesn’t cover the civil rights of the LGBTQ community. The Daily Beast pointed out that nearly three-quarters of Americans support anti-discrimination protections for trans people; the support for protections for LGB employees is even more unanimous — and anyway, apparently most Americans already thought that it was illegal to fire someone because of their gender identity and sexual orientations.
However, even Justice Ruth Bader Ginsburg agreed with Justice Samuel Alito at yesterday’s hearing that the law was not explicitly written with the current conceptions of gender and sexuality in mind; nonetheless, that doesn’t mean that the Civil Rights Act cannot be interpreted today as protection for the LGBTQ community, especially since we’ve adapted the legislation to cover sexual harassment . ”No one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in ’64. […] Now we say, of course, harassing someone, subjecting her to terms and conditions of employment she would not encounter if she were a male, that is sex discrimination, but it wasn’t recognized to be such in the beginning.”
Justice Sonia Sotomayor, agreeing with Ginsburg’s perspective, posed the question, “At what point does a court continue to allow invidious discrimination?”