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Protestors holding placards outside SCOTUS.
Ephrat Livni
Demonstrators demanded recognition of their rights outside the courthouse.
COMPARISONS ASIDE

Arguments about sex had heads spinning at the US Supreme Court

By Ephrat Livni in Washington DC

US supreme Court justices heard oral arguments in three much-anticipated cases today. Outside, demonstrators lined the sidewalks. Inside, observers packed the courtroom, with people crammed elbow-to-elbow in tight rows of reserved seats.

The three cases were consolidated for the court and all ask whether sexual orientation and transgender status falls within the meaning of “sex” in Title VII, a 1964 civil rights law that protects employees from discrimination.

“Sex means whether you’re male or female, not whether you’re gay or straight,” argued the US solicitor general on behalf of employers who terminated their workers for sexual orientation and trans status. The government’s position is that legislators never contemplated gender identity or homosexuality when passing Title VII and that neither of these are protected by the “because of sex” clause in the law.

Attorneys for the terminated employees, however, argue that sexual orientation and trans status are subsets of sex, included and inextricably linked to gender and that the federal law is designed to protect them as well.

The two sides don’t agree on much, most notably who to compare the injured parties to when judging whether there was discrimination.

To determine if bias inspired the terminations, you have to consider how similarly situated people who don’t share the allegedly offending characteristic were treated and compare. The government says the proper comparison here is between the treatment of homosexual women and trans women. In other words, would the gay male and trans woman employees have been fired if they were gay women and a female transitioning to male? The answer is probably yes, so there’s no problem, technically if not morally speaking, insofar as similarly situated individuals were treated the same way.

The employees argue that the proper comparison is between them and straight, cis workers—would women be fired for dating men or for conforming to the sex they were assigned at birth? Using that comparison, the answer is probably no. Employers generally wouldn’t discriminate against people who conform to gender stereotypes. In that case, there’s an injury to the employees, who were terminated because of their sex, unlike other similarly situated individuals.

As justice Samuel Alito put it this morning, “The parties in their briefs, they have all these comparisons and they will make your head swim.”

The spirit and letter of the law

Comparisons aside, not all of the justices seemed confused about whether the 1964 civil rights law intended to protect LGBTQ+ individuals.

“Title VII meant to strike out the entire spectrum of sex discrimination,” justice Ruth Bader Ginsburg pronounced authoritatively. And given her role as a pioneer attorney arguing sex discrimination cases in the 1970s, it was hard to object to her certainty, although attorneys for the employers and government certainly tried. But Ginsburg pointed out that when the law was passed in 1964, legislators also didn’t consider sexual harassment as problematic, and with time that form of harassment became classified as discrimination because of sex as well.

In other words, Ginsburg was arguing that a nation’s understanding of discrimination can and does evolve and that the role of the justices is to recognize the changes that society does.

The government, not wanting perhaps to seem to support discrimination while arguing for it, said that if the justices rule for the employees and find that sex includes the subsets of sexual orientation and trans status, it would be depriving Americans “of the opportunity to struggle with the issues democratically.”

But justice Stephen Breyer disagreed. He noted that the courts have a job to interpret statutes and that fulfilling this duty was entirely democratic. He also argued that when Title VII was passed, the shadow of slavery and racial discrimination loomed over Americans. And the law was designed to counter the pernicious effects of discrimination, including based on sex and its subsets. Breyer’s view seems to be that both the spirit and letter of the law demand that the justices rule that gay and trans status fall into the protected category of sex.

“At what point does the court continue to permit invidious discrimination,” justice Sonia Sotomayor asked. “We can’t deny that homosexuals are being fired…merely because they are a suspect class to some…They are still being beaten and ostracized.”

Justice and judicial modesty

The government, again, said that it’s up to Congress to change the law to explicitly include the desired protections. Justice Neil Gorsuch appeared to support this view even as he challenged attorneys about the argument that sexual orientation and trans status were not tied to sex.

“No one is questioning the legitimacy of the claims,” Gorsuch said of the terminated employees’ arguments about discrimination. But he suggested that if the court ruled that “because of sex” included the debated subsets, it might offend notions of “judicial modesty.”

In that sense then, Gorsuch managed to have his cake and eat it too, seeming sympathetic and suggesting an unsatisfactory conclusion for the terminated workers nonetheless. He acknowledged the perniciousness of discrimination but shifted the role of fixing it to legislators.

“When a case is really close based on textual evidence, at the end of the day should [a judge] take into consideration the massive social upheaval entailed? It’s a question of judicial humility,” he concluded, hinting at the reasoning we might expect to see in his decision next year.

Alito expressed a similar sentiment, arguing that some would say the question of whether Title VII should prohibit discrimination based on sexual orientation and gender identity is “a big policy issue.” Contrary to Breyer, who asserted that the court’s role is to interpret the statute, Alito said, “If the court interprets the 1964 statute, we’ll be acting as legislators.”

David Cole, the attorney for Aimee Stephens, who was terminated when she informed her employer she was transitioning, denied there would be any upheaval or disruption societally if the justices decide for his client. He pointed out that Supreme Court precedent has already found that discrimination based on gender stereotypes about how a woman or man ought to behave is illegal. As such, it required no extra effort on the part of justices to justify finding that the employers in these cases discriminated based on expectations about how men should behave, specifically that they should date women or present as men.

“We’re not asking that you redefine status,” Cole urged them, “but arguing that you can’t understand what happened here without looking at sex.”