When Justice Anthony Kennedy announced he would leave the Supreme Court last June, he gave a giant middle finger to millions of gay, lesbian, and bisexual Americans who saw the Court slowly begin to respect their humanity. Though Kennedy was very conservative on most issues, he was relatively moderate on gay rights questions, and often joined with the Court’s liberal bloc to vindicate these rights.
Kennedy’s replacement, Brett Kavanaugh, is a much more doctrinaire conservative who is unlikely to have much sympathy for LGBTQ plaintiffs. So the shift from Kennedy to Kavanaugh is likely to be felt hard in three cases the Supreme Court agreed to hear on Monday.
Altitude Express Inc. v. Zarda and Bostock v. Clayton County both ask whether existing federal law prohibits employment discrimination on the basis of sexual orientation. R.G. & G.R. Harris Funeral Homes v. EEOC asks the same question about anti-trans discrimination.
In all three cases, the legal arguments against saying that such discrimination is forbidden are exceedingly weak. Title VII of the Civil Rights Act of 1964 forbids employment discrimination “because of . . . sex” (the word “sex” in this context refers to gender and not to sexual intercourse), and it is difficult to argue that firing someone for being LGBTQ is not a form on gender discrimination.
As the appeals court explained in Harris Funeral Homes, the trans discrimination case, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The whole point of such a firing is that the employee’s boss does not believe that the employee identifies with the proper gender.
Similarly, suppose that a woman is fired because she is a lesbian. A lesbian is a woman who is sexually attracted to women, but presumably the same employer would not fire men who are sexually attracted to women. Thus, this woman was fired because she has desires that male employees are allowed to have. That is gender discrimination.
Additionally, in Price Waterhouse v. Hopkins, the Supreme Court held that “sex stereotyping” is illegal gender discrimination. Firing an employee because you believe them to be a man who is behaving too much like a woman is sex stereotyping. Similarly, the notion that only men may have sex with women and vice-versa may be the ultimate sex stereotype.
So if the Supreme Court follows the law in Zarda, Bostock, and Harris Funeral Homes, they will rule in favor of the plaintiffs in a 9-0 decision. That outcome, however, is unlikely.
If a decade of increasingly ridiculous judicial opinions striking down Obamacare has taught the legal profession anything, it should be that, in politically charged cases, judges are more likely to behave like raw partisans rather than as jurists.
Republicans control a majority on the Supreme Court. Republicans oppose LGBTQ rights. It’s not hard to guess how Zarda, Bostock, and Harris Funeral Homes are likely to be decided.