{"id":100473,"date":"2019-10-08T14:25:26","date_gmt":"2019-10-08T18:25:26","guid":{"rendered":"https:\/\/www.gayfriendschat.com\/socialblog\/scotus-split-on-whether-title-vii-bars-lgbtq-employment-discrimination-gorsuch-ided-as-possible-swing-vote-reactions\/"},"modified":"2019-10-08T14:25:26","modified_gmt":"2019-10-08T18:25:26","slug":"scotus-split-on-whether-title-vii-bars-lgbtq-employment-discrimination-gorsuch-ided-as-possible-swing-vote-reactions","status":"publish","type":"post","link":"https:\/\/www.gayfriendschat.com\/socialblog\/scotus-split-on-whether-title-vii-bars-lgbtq-employment-discrimination-gorsuch-ided-as-possible-swing-vote-reactions\/","title":{"rendered":"SCOTUS Split on Whether Title VII Bars LGBTQ Employment Discrimination, Gorsuch ID\u2019ed as Possible Swing Vote: REACTIONS"},"content":{"rendered":"

SCOTUS Split on Whether Title VII Bars LGBTQ Employment Discrimination, Gorsuch ID\u2019ed as Possible Swing Vote: REACTIONS<\/b><\/p>\n

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Refresh this post for updates\u2026.<\/em><\/p>\n

Today the U.S. Supreme Court heard arguments on Title VII and LGBTQ job discrimination, hearing cases involving whether someone can be fired from their job for being gay<\/a> or transgender. Background on the cases HERE<\/a>.<\/p>\n

Read the transcript of the two consolidated cases, Bostock v. Clayton County<\/em> and Altitude Express v. Zarda<\/em>, HERE<\/a>.<\/p>\n

Gorsuch has been identified as a possible swing vote.<\/p>\n

The Washington Blade<\/em>\u2018s Chris Johnson reports that Justice Neil Gorsuch emerged as a potential ally for LGBTQ workers based on his questioning<\/a>: \u2018Gorsuch, a Trump-appointed justice who considered himself a textualist, asked many questions suggesting he\u2019s at least considering the idea of anti-LGBT discrimination is a form of sex<\/a> discrimination, thus prohibited under Title VII of the Civil Rights Act of 1964. \u2026 Throughout the arguments, Gorsuch made several inquiries on whether the concept of sex<\/a> is inseparable from anti-LGBT discrimination. At one point, Gorsuch asked, \u201cIsn\u2019t sex<\/a> also at play here?\u201d and gave an example of a employer firing a man<\/a> for being attracted to another man<\/a> as an example of sex<\/a> discrimination. \u2026 To be sure, Gorsuch also asked questions about whether employers could keep sex<\/a>-segregated bathrooms under LGBT-inclusive Title VII.\u2019<\/p>\n

Bloomberg reports<\/a>: \u2018The two-hour session Tuesday suggested that LGBT advocates had at least a chance to win the vote of conservative Justice Neil Gorsuch, along with the court\u2019s four liberal members. Gorsuch sent mixed signals, calling the case \u201creally close.\u201d \u2026 Trump\u2019s other appointee, Brett Kavanaugh, said very little and didn\u2019t tip his hand. \u2026 Another conservative justice, Samuel Alito, was skeptical of the workers\u2019 claims, at one point telling the lawyer for two gay<\/a> men<\/a> that \u201cyour whole argument collapses.\u201d \u2026 Chief Justice John Roberts expressed concern about the impact on religious organizations if the high court were to side with LGBT workers. He was one of several justices who asked what the cases could mean for single-sex<\/a> bathrooms.\u2019<\/p>\n

Here are some initial reactions via Twitter from those in the room.<\/strong><\/p>\n

Bloomberg\u2019s Greg Stohr:<\/p>\n

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Gorsuch says that when a person is fired because of sexual orientation, that person’s sex<\/a> is at least a “contributing cause.”<\/p>\n

\u2014 Greg Stohr (@GregStohr) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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Liberals all seemed firmly on employees’ side. Kagan says language of Title VII “pretty firmly” backs gay<\/a> workers’ claims.<\/p>\n

\u2014 Greg Stohr (@GregStohr) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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Again, all of above is based on first half of argument, which centered on sexual orientation (though there was also some discussion about gender identity).<\/p>\n

\u2014 Greg Stohr (@GregStohr) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

Slate\u2019s Mark Joseph Stern:<\/p>\n

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Solicitor General Noel Francisco told the court that LGBTQ equality will lead to men<\/a> in women<\/a>\u2019s showers. Lots of arguments about bathrooms. Cringe-worthy. <\/p>\n

Pam Karlan was INCREDIBLE. Her turn at the lectern was powerful and bold and witty and perfect. I was blown away.<\/p>\n

\u2014 Mark Joseph Stern (@mjs_DC) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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Kavanaugh asked one question: Whether the anti-LGBTQ side was \u201cdrawing a distinction between the literal and ordinary meaning\u201d of discrimination \u201cbecause of sex<\/a>.\u201d <\/p>\n

I\u2019m not sure he has made up his mind. I suspect that when he does, he will side against LGBTQ rights.<\/p>\n

\u2014 Mark Joseph Stern (@mjs_DC) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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Gorsuch seemed ambivalent, but said that \u201cwhen a case is really close on the textualist evidence,\u201d the court should refuse to work \u201ca drastic change in this country.\u201d I think he will cast an anti-LGBTQ vote and claim judicial modesty.<\/p>\n

\u2014 Mark Joseph Stern (@mjs_DC) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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There was a low-key beautiful moment when Kagan almost referred to a trans<\/a> person\u2019s \u201cbiological sex<\/a>,\u201d then stopped herself and thought for a moment and said \u201csex<\/a> assigned at birth\u201d instead. <\/p>\n

\u2014 Mark Joseph Stern (@mjs_DC) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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Anyway I think the court will reject the argument for LGBTQ equality by a 5\u20134 vote, with the five conservatives claiming judicial modesty and saying Congress has to deal with this. <\/p>\n

But I wouldn\u2019t say there\u2019s NO cause for hope. It was not a wipeout for LGBTQ rights by any means.<\/p>\n

\u2014 Mark Joseph Stern (@mjs_DC) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

Washington Blade<\/em>\u2018s Chris Johnson:<\/p>\n

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Gorsuch, a textualist, asked many Qs about if \u201csex<\/a> is also in play\u201d in cases of anti-LGBT discrimination.<\/p>\n

To be sure, Gorsuch also asked Qs about whether employers could keep sex<\/a>-segregated bathrooms under LGBT-inclusive Title VII.<\/p>\n

\u2014 Chris Johnson (@chrisjohnson82) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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LGBT people should definitely *NOT* expect support from Chief Justice John Roberts.<\/p>\n

His questions pointed out Congress didn\u2019t intend to include LGBT people in 1964, bathroom issues and states doing the job to ban anti-LGBT discrimination.<\/p>\n

\u2014 Chris Johnson (@chrisjohnson82) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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The 4 liberal justices \u2013 Breyer, Ginsburg, Sotomayor and Kagan- were forceful in advocating for LGBT inclusion under Title VII.<\/p>\n

Breyer had a great line that Congress intended the Civil Rights Act to end invidious discrimination and would have included LGBT people if passed now.<\/p>\n

\u2014 Chris Johnson (@chrisjohnson82) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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Here\u2019s a question Gorsuch poised to @Aclu<\/a>\u2019s David Cole that I think encapsulates the justice\u2019s thinking:<\/p>\n

\u201cAssume for a moment that I\u2019m with you on the textual argument. Should the court be concerns about the massive social upheaval that would ensue?\u201d<\/p>\n

\u2014 Chris Johnson (@chrisjohnson82) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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All in all, hard for me to predict outcome of the LGBT cases based on Title VII arguments.<\/p>\n

But if the LGBT side does win, it may be Justice Gorsuch who takes it over the finish line.<\/p>\n

\u2014 Chris Johnson (@chrisjohnson82) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

SCOTUSblog\u2019s Amy Howe:<\/p>\n

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#SCOTUS<\/a> just finished oral arguments on whether federal civil rights laws protect LGBT employees. Case could hinge on Justice Neil Gorsuch, who acknowledged that question is close but also expressed concern about \u201cmassive social upheaval\u201d<\/p>\n

\u2014 Amy Howe (@AHoweBlogger) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

The Economist<\/em>\u2018s Steven Mazie:<\/p>\n

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The hearings were dominated by conceptual and interpretive questions. But near the end, Justices Breyer & Sotomayor summoned the big picture of the purpose of the civil rights movement: protecting people from invidious discrimination.<\/p>\n

\u2014 Steven Mazie (@stevenmazie) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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Gorsuch said it was a close textual case, but suggested that \u201cjudicial modesty\u201c militates against sparking an \u201cupheaval\u201c in the definition of sex<\/a> discrimination. A signal of the concurrence he may have already written in his mind?<\/p>\n

\u2014 Steven Mazie (@stevenmazie) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

Zoe Tillman from Buzzfeed News:<\/p>\n

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A few quick takeaways from the Title VII arguments, more to come in a bit:
\u2013 Justices on both sides of ideological spectrum are clearly really focused on the issue of bathroom use and the rights of transgender individuals, even as lawyers kept saying this is not that case<\/p>\n

\u2014 Zoe Tillman (@ZoeTillman) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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\u2013 Setting aside Kavanaugh, the court’s conservative arm spent time exploring the arg that this is a matter for Congress, and not the courts, to decide. On the other side of that coin, the liberal arm asked Qs about historical role of courts in protecting rights<\/p>\n

\u2014 Zoe Tillman (@ZoeTillman) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

ACTIVITY OUTSIDE THE COURT<\/strong>.<\/p>\n

Approximately 20 people from Housing Works were arrested protesting outside the court, the Washington Blade<\/em> report<\/a>s: \u201cWe already live<\/a> in a world where people who don\u2019t fit societal conventions of gender expression are subject to stigma, discrimination, verbal and physical abuse, and even being killed for who they are,\u201d said Housing Works CEO Charles King in a press release that Housing Works issued earlier this week. \u201cThis is compounded for our transgender, non-binary and gender non-conforming brothers, sisters and siblings. We are mobilizing this action because we are deeply concerned and angered that the gates could be opened to losing rights and protections in the workplace, in education, healthcare, the military and beyond.\u201d<\/p>\n

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BREAKING NEWS: Dozens of @housingworks<\/a> members are blocking First Street, N.E., in front of the U.S. Supreme Court in an act of civil disobedience. My colleague @MichaelKeyWB<\/a> says Capitol Police have begun to arrest the protesters @WashBlade<\/a> @LosAngelesBlade<\/a> pic.twitter.com\/xONCgPRlPg<\/a><\/p>\n

\u2014 Michael K. Lavers (@mklavers81) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

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Laverne Cox on steps of Supreme Court: “I am so incredibly honored and overwhelmed that I got to be present on this historic day,” when “the very first case involving transgender rights was argued before the Supreme Court.” t.co\/vJJTruAqpm<\/a> pic.twitter.com\/x7RgNu0bqp<\/a><\/p>\n

\u2014 ABC News (@ABC) October 8, 2019<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

The post SCOTUS Split on Whether Title VII Bars LGBTQ Employment Discrimination, Gorsuch ID\u2019ed as Possible Swing Vote: REACTIONS<\/a> appeared first on Towleroad Gay News<\/a>.<\/p>\n

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SCOTUS Split on Whether Title VII Bars LGBTQ Employment Discrimination, Gorsuch ID’ed as Possible Swing Vote: REACTIONS<\/a><\/p><\/blockquote>\n