Could Gorsuch Be Swing Vote In LGBTQ Workplace Protections?

LGBTQ activist in front of Supreme Court (cropped image: Ted Eytan/FlickrCC License)

The U.S. Supreme Court heard oral arguments on Tuesday for three cases considering whether current federal civil rights laws protect LGBTQ people in the workplace.

Two of the cases (Zarda v. Altitude Express and Bostock v. Clayton County) involve the firing of gay men and question whether anti-gay discrimination is illegal under Title VII of the Civil Rights Act of 1964.

The third case, EEOC v. Harris Funeral Homes, looks for resolution on whether anti-transgender discrimination is illegal under the law.

The basic premise of the arguments hinges on whether discrimination based on “sex” – which Title VII prohibits – includes any discrimination involving sexual orientation.

In other words, are employers allowed to discriminate against an employee based on the sex of the person they may date or marry?

Conservative Justice Samuel Alito seemed to take the position that Congress in 1964 did not foresee covering sexual orientation or gender identity when passing Title VII.

“You’re trying to change the meaning of ‘sex,’” said Alito according to the Associated Press.

But Justice Elena Kagan suggested ‘sexual orientation’ is clearly a subset of sex discrimination in that a man who loves other men shouldn’t be treated differently by an employer than a woman who loves men.

Here are the immediate reactions by some reporters who attended the oral arguments.

Chris Johnson, of the Washington Blade, tweets that the ruling could come down, surprisingly, on Justice Neil Gorsuch who asked several questions “if sex is also in play” in cases regarding anti-LGBTQ discrimination.

Johnson also felt that Chief Justice John Roberts, who has become something of the ‘moderate/swing vote’ on the court since the retirement of Anthony Kennedy, should not be counted on to rule in our favor.





Legal blogger Amy Howe, formerly of SCOTUS Blog, also came away thinking Gorsuch could be a surprise swing vote.


Steven Mazie at The Economist felt Roberts and Gorsuch seemed ‘sensitive’ to both sides but will probably rule against Title VII protecting LGBTQ people.

He also noted Gorsuch’s comment suggesting “judicial modesty” would dictate ruling against LGBTQs due to possible “massive social upheaval” that might occur if Title VII were found to protect queer people in the workplace.


And from Mark Joseph Stern at Slate:





Currently, only 21 states, the District of Columbia, and two territories, Guam and Puerto Rico, have laws banning bias in the workplace based on both sexual orientation and gender identity.

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