The absolute worst case scenario in the Supreme Court’s new anti-LGBTQ cases

A lot more than LGBTQ rights are potentially on the chopping block.

CREDIT: Doug Mills-Pool/Getty Images
CREDIT: Doug Mills-Pool/Getty Images

The Supreme Court announced on Monday that it would hear three cases questioning whether federal civil rights laws permit employers to fire workers because of their sexual orientation or gender identity. That alone makes these blockbuster cases. But, in the hands of an increasingly ideological Supreme Court, even more is potentially at stake.

The court’s decision to hear Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC does not just threaten LGBTQ rights, it potentially casts a cloud over longstanding bans on sexual harassment and other forms of gender discrimination in the workplace. In its apparent zeal to legalize discrimination against gay, bi, and trans workers, this Supreme Court could shred many protections long enjoyed by women in the workplace — and it could do so in a way that undercuts one of the greatest opinions ever written by a conservative icon.

Justice Antonin Scalia was no fan of gay rights. He did, after all, once use a dissenting opinion to accuse the legal profession of getting in bed with a “homosexual agenda” that seeks to eliminate “the moral opprobrium that has traditionally attached to homosexual conduct.”

He thought that would be a bad thing.

Yet, in his best moments, Scalia could transcend his ideology and recognize that the law does not always produce the result he prefers. Such was the case in Scalia’s unanimous opinion in Oncale v. Sundowner Offshore Services, which involved a male oil platform worker alleging sexual harassment by his male co-workers.


As Scalia acknowledged in Oncale, “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” the primary federal law prohibiting employment discrimination. Nevertheless, Scalia also recognized that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

In other words, the text of the law must control, not the unwritten intentions of past lawmakers. The language of Title VII is broad enough to forbid male-on-male harassment, even if the specific members of Congress who voted for Title VII did not think they were targeting this kind of harassment when they enacted the law.

On Monday, the Supreme Court announced it will hear three of the most important LGBTQ rights cases since it ended marriage discrimination against same-sex couples in 2015. It is overwhelmingly likely that this Supreme Court, now dominated by hardline conservatives with no love for LGBTQ rights, will use its decisions in ZardaBostock, and Harris to hold that federal law permits employers to fire someone for being gay, bi, or trans.

Yet, to do so, the court will need to cast aside Scalia’s insight in Oncale that sometimes the text of the law leads in directions that individual members of Congress never anticipated. Worse, ZardaBostock, and Harris potentially threaten longstanding bans on sexual harassment in the workplace, and on employers who require their workers to comply with outdated gender stereotypes.

Three easy cases made hard

Title VII prohibits employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” (in this case, “sex” refers to gender and not to sexual intercourse).


If the Supreme Court takes this text seriously, then it must rule that the existing ban on discrimination “because of . . . sex” forbids anti-LGBTQ discrimination in the workplace. As the appeals court explained in the Harris 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 point of such a firing is that a trans worker’s boss does not believe that this worker identifies with the proper sex. That’s discrimination “because of” sex.

Likewise, suppose that an employer fires a man for being gay. The reason for this firing is that the employer objects to the fact that a male employee is sexually attracted to other men. But, presumably, the same employer would not fire a female employee for being attracted to men. That is also a form of sex discrimination.

The primary argument against this reading of Title VII is that anti-gay or anti-trans discrimination, to borrow Scalia’s language, “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” As the Trump administration claims in a brief arguing against protecting trans employees, “when Title VII was enacted in 1964, ‘sex’ meant biological sex; it ‘refer[red] to [the] physiological distinction[]’ between ‘male and female’” — a definition it derives from a 1958 dictionary.

Similarly, gay people were banned from federal employment until 1975. It’s unlikely that members of Congress intended to lift this ban 11 years earlier when it enacted Title VII.

The question in ZardaBostock, and Harris, in other words, is whether Scalia was correct that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” And, if not, just how willing this Supreme Court is to ignore statutory text in order to reach a result favored by conservatives.

Legalizing sexual harassment

Scalia’s insight that Title VII should be read according to its text — and not according to the narrow intentions of the lawmakers who wrote that law — is hardly a new one. Indeed, it’s animated a long string of Title VII cases stretching back to the 1970s.


Consider, for example, the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, where the justices sided with a high-performing woman at an accounting firm, who was allegedly denied a partnership because the existing partners viewed her as too masculine — as Justice Sandra Day O’Connor noted in a concurring opinion, “the partner responsible for informing Hopkins of the factors which caused her candidacy to be placed on hold indicated that her ‘professional’ problems would be solved if she would ‘walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.’”

Price Waterhouse held that such “sex stereotyping” is not allowed. Again, the language of Title VII is expansive — any discrimination “because of . . . sex” is forbidden. And that expansive language is broad enough to protect a woman who faces discrimination because her bosses deem her to be too mannish.

But, if that’s the rule, then LGBTQ discrimination is forbidden.

Suppose, for example, that the Trump administration is correct that “sex” is a trait that is fixed at birth, and determined solely by examining whether a particular individual was born with a penis or a vagina. Under this erroneous definition, a trans man is a woman who refuses to comply with female gender stereotypes — someone who, like the plaintiff in Price Waterhouse, may refuse to “walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry.” So it is illegal under Price Waterhouse to fire a trans man for refusing to align their behavior with such stereotypes.

Similarly, the idea that only men may have sex with women, or that only women may have sex with men, may be the ultimate sex stereotype. To fire someone for being gay is to fire them for not complying with a stereotyped understanding of who people of a particular gender should be attracted towards.

To rule against the plaintiffs in ZardaBostock, and Harris, in other words, the Supreme Court would need to overrule — or, at least, drastically limit — its holding in Price Waterhouse. That would have profound implications for all workers, regardless of their sexual orientation or gender identity.

And it could get even worse from there.

The concept of sexual harassment did not exist, at least as it is understood by courts today, when Title VII was enacted in 1964. According to one scholarly paper, the term “sexual harassment” was first used in a 1973 report. The idea that Title VII permits victims of sexual harassment to sue their harassers was popularized by the legal scholar Catherine MacKinnon in a 1979 book.

The Supreme Court, moreover, did not recognize that Title VII prohibits sexual harassment until its 1986 opinion in Meritor Savings Bank v. Vinson. “When a supervisor sexually harasses a subordinate because of the subordinate’s sex,” Justice William Rehnquist wrote for a unanimous Supreme Court in Vinson, “that supervisor ‘discriminate[s]’ on the basis of sex.”

Vinson, in other words, applied the same sort of reasoning that Justice Scalia applied in Oncale. The proper question is not whether members of Congress who voted for a 1964 statute believed that they were banning sexual harassment. The question is whether the words of that statute are broad enough to forbid such harassment in the workplace. And every single member of the Supreme Court that heard the Vinson case concluded that sexual harassment was, indeed, prohibited.

The danger presented by ZardaBostock, and Harris is that they force a staunchly conservative Supreme Court to choose between the text of the law and a conservative understanding of what lawmakers hoped to accomplish in 1964. And, if five members of the court ultimately conclude that these lawmakers’ intentions do matter, that could have profound implications beyond LGBTQ discrimination.

If the text of Title VII doesn’t control, then cases like Vinson were wrongly decided. The legal concept of sexual harassment did not develop until years after Title VII became law. The only thing Vinson has going for it is Scalia’s insight that the text of the law should trump lawmakers’ subjective intent.

The Supreme Court, in other words, may be on the cusp of rewriting decades of anti-discrimination law. And, if it does do so, it will do so by ruling that the text of the law does not matter.