High Court May Wipe Out Protections for LGBTQ Workers

and on Bloomberg dot com slash podcasts. For two decades, most of the LGBT movement's highest profile victories have come at the Supreme Court, from legalizing gay sex in two thousand three to legalizing gay marriage and twenty But as they say, that was then, and this is now and next year, a more conservative court could deal lgbt Q rights a real blow. Joining me is Steve Sanders, a

professor at Indiana University's Mara School of Law. So, Steve, the Court has decided to accept for next term a trio of cases involving a child welfare worker, a skydiving instructor, and a funeral director. Tell us about the basic issues in the cases under title seven. M sure, Jan, Well, as you said in the opening, the big cases where gays and lesbians have achieved landmark victories of the Supreme Court have been under the Constitution, either under principles of

liberty or under equal protection. All three of these cases the Court has accepted for next year involved interpretations of the Civil Rights Act of nineteen sixty four, Title seven. As you said, in nineteen sixty four, Congress passes a law which prohibits discrimination in employment on the basis of race and on the basis of sex, in addition to a number of other categories. Basically, the question in all of these cases is does sex include either sexual orientation

or gender identity? That is, when a gay or lesbian, or transgender person is fired from a job or otherwise subjected to an adverse employment action because of their sexual orientation or because of their gender identity, is that encompassed within the meaning of the words sex in Title seven. The argument that it's not essentially stems from the idea in nineteen sixty four Congress could not possibly have imagined that it was dealing with issues of sexual orientation or

gender identity. It understood itself to be essentially protecting women against discrimination in the workplace. But two federal courts of appeals that have come to the conclusion that Title seven does cover sexual orientation have said, look, basically, if you want to have a relationship with a man, if you are a woman, that's fine in the eyes of your employer. If you're a man, that's not fine, and you could be fired. Well, that's just discrimination on the basis of sex,

whether you're a man or a woman. And similarly, a case from Kentucky involving a funeral director of funeral home a person who is transgender said that they were fired to meet. The idea that gender identity is intertwined with sex does not seem to be a stretch, but we will see what the court decides. These cases are not about the broad principles of equality and liberty in the Constitution. They're really about you know what do words in federal

statutes passed by Congress actually mean? Linguistics. The Supreme Court ruled in that Title seven prohibits gender stereotyping, So how is sexual orientation different from that? Well, that that's uh. That insight is exactly has been critical to the court cases that have said Title seven encompasses gender identity and sexual orientation. There's a bit of bootstrapping. As you said,

there's a a price Waterhouse versus Hopkins case. The Supreme Court said that gender stereotypes about gender stereotypes, about what it means to be a man or a woman, how a woman should present herself to the world, what characteristics they have, what they're capable of doing in the workplace, that those that kind of discrimination is covered by seven. So that's a critical logical step um in the reasoning of the courts that have applied Title seven to gaze

and lesbians and transgender people. I think there are some scholars who actually fear that in taking these cases, the Supreme Court might step back, might pull back from that idea that it announced in the Price Waterhouse case about gender stereotyping, or it might or at least might seek to put some limits, some boundaries around the idea of what types of gender stereotypes implicate Title seven. So, Steve, gay rights advocates have been meeting some resistance at the

Supreme Court even before Justice Kennedy left. How much are these cases likely to be divided and will the presence of Justice Britt Kavanaugh make a difference? Yeah, I think that, Uh, you know, I'm not sure that these cases necessarily would have gone in favor of uh the gay and lesbian and transgender parties even with Justice Kennedy. Justice Kennedy tended to be somewhat more conservative when it came to federal statutes federal civil rights laws than he was with the broad,

malleable language of the Constitution. I think the safe bet the most likely outcome is that these will be five to four with the conservatives the courts, five conservatives joining the majority to reverse the lower federal courts. And I think they'll feel especially free to do that because they can always make the argument, Look, if people want this kind of protection for gender identity, for sexual orientation, talk to your legislators, get Congress to do it. Um, these

laws can be changed. These laws are subject to democratic principles. Now, it's worth saying that the counter argument to that is that substantial majorities of Americans have favored this kind of employment protection literally since the nine nineties, but Congress has not yet acted, or at least both houses of Congress together have not yet acted. So it does present the dilemma, what do you do when the court says this isn't

what this law means? But um, the representative branch of government that passes laws is also unresponsive to what majority of Americans actually say they want. When Barack Obama was president, the Equal Employment Opportunity Commission said sexual orientation discrimination is covered by Title seven. Trump administration has done a one eighty and shifted the government's position. Does that affect the

cases at all? Um? Well, if if the Supreme Court interprets Title seven as not encompassing sexual orientation or gender identity, then the e e o C will have to adjust its understanding as well the Supreme courts until Congress does something different, the Supreme Court's interpretation of Title seven will control. Um. You know, the the e e o C is the

agency that has expertise on employment discrimination. One hopes that the Court would at least consider the e e o c s views and consider the e o CS analysis. But at the end of the day, the e o c's views might be persuasive, but they're certainly not binding on the federal courts and certainly not binding on the Supreme Court. It won't be the first time that the Trump administration has had two different views at the Supreme

Court or at other courts. That's right. It's interesting that, you know, President Trump has been sort of touting on Twitter his support, wishing people happy Pride Month and so forth. Yet, as you point out, his Justice Department has taken positions in these cases that are actually go against the interests at gays and lesbians and transgender people, and presumably will do so at the Supreme Court as well well. Thanks so much, Steve for those insights that Steve Sanders, a

professor at Indiana University's Mara School of Law. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg