Central PA's LGBT News Source

Decision could come next june

LGBT employ cases argued before Supreme Court

Analysis by Sharon Lopez, Lancaster-based civil right attorney


Editor’s note: Sharon Lopez, a Lancaster-based civil right attorney, was in the US Supreme Court Oct. 8 when the nation’s highest court heard three LGBT employment cases. She analyzes for The Central Voice the workings of the day. In a previous article , Lopez provides more detail. This analysis begins with Lopez’s profound quote from Chief Justice Roberts: “The cases are submitted.” Final decisions on the cases are forecast to be issued sometime in late June.


Three arguments were held in two hours. The Solicitor General supports the employer’s position in all three cases.  The lead appellate oral advocates for the gay and transgendered litigants were David Cole, the national legal director of the American Civil Liberties Union, and Pamela Karlan, the Stanford University law professor.

My Analysis

In a previous article in The Central Voice I explained the cases in more detail, but the bottom line question for the Justices was whether Title VII of the Civil Rights Act, which states “It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex,” prohibits discrimination of gays, lesbians, and transgender people.”  Isn’t sex stereotyping, which expects men to be attracted to women and vice versa, or that a person’s assigned sex at birth, male or female, how that person is expected to present, also prohibited by Title VII?  The advocates in the courtroom thought the answer was clear and simple.

Professor Karlan pointed out that treating someone differently because of sex is not always discrimination. She explained that the person had to be disadvantaged in some way.  She also pointed out that social unrest would not happen if gays and transgender people were protected under the law. When pushed about the right to religious freedom, both advocates reminded the court that the law already provides for religious exemptions. This was a reference to the Masterpiece Cake case that allowed a store owner to not serve or sell a wedding cake to a gay couple because of religious objections to same-sex marriage.

Both advocates focused their arguments on the text of Title VII of the Civil Rights Act, which states “It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.”  Some of the conservative justices asked whether it was appropriate to take on the legislative task of amending Title VII via court caselaw.  Prof. Kaplan swiftly and deftly retorted, “Title VII was intended to make sure that men were not disadvantaged relative to women and women were not disadvantaged relative to men.”  Therefore, there is no need to amend the statute.

“Parade of horribles”

Several justices focused on concerns about bathroom, and dress codes. Justice Breyer dismissed this line of questioning as a “parade of horribles,” and both Professor Karlan and Attorney Cole indicated that those were questions for another day and that these cases were about determining if gays, lesbians, and transgender employees were protected from discrimination in the workplace.

Justice Gorsuch referred to prior rulings finding equal protection for the right to marry, but stated “good and decent people” may object to same-sex marriage on religious grounds. 

Asserting her seniority, Justice Sonia Sotomayor interrupted Gorsuch, asking when the Supreme Court should intervene to stop “invidious discrimination.” She said gay people are still being fired just because of their sexual orientation. At what point, she asked, do we say that Congress did address this? Many of the attorneys in front of me turned to each other and nodded. She was saying what we were feeling.

The employer advocates were represented by Attorney Jeffrey Harris, Attorney John Bursch and U.S. Solicitor General Noel Francisco, who support the position of both the employers permitting the termination of the two gay men and the one transgender woman.  They argued that the job expanding the statute was in Congress’ authority, not the court.

Justice Kagan reminded them that the plain language of the statute prohibited sex discrimination, and that the need to amend the statute is not clear. The advocates countered that the broad interpretation was not intended by the original drafters. 

Justice Ginsburg reminded the advocates that sexual harassment was not in the original statute either, but sexual harassment is broadly accepted as proscribed behavior.

The newest member of the Court, Justice Kavanaugh, only asked one question, which did not tip his hand.

Justice Thomas did not ask any questions, but his judicial philosophy is to not ask questions of the advocates.

How the justices may go

Justices Sotomayor, Breyer, Ginsburg, and Kagan are clearly in support of reading the statute to provide LGBT protections at work.

Justice Alito expressed enough concern to allow me to conclude he would not support an opinion that found such protection for LGBT workers. 

Justice Thomas has voted with the conservative justices in the past, so there is no reason for him to depart now.

In order to prevail and find protections for LGBT workers in Title VII pursuant to the sex discrimination clause, either Chief Justice Roberts or Justice Gorsuch will need to vote with the liberal block.  I do not hold out much hope for Justice Gorsuch.

It may all come down to Chief Justice Roberts. My hope is that he will view the statute using the plain language of the law as his guide. If Congress disagrees with the decision, they can vote to amend the statute.  All this is happening in an election year. as most of the big decisions of the Court are usually issued at the conclusion of the term, the end of June 2020.

Once the decision is made, I will report on the application of the ruling on the LGBT community. The cases have been submitted.  Stay tuned!

Pre-hearing interviews

Attached are YouTube videos interviews of Mitchel Katine, Rachel See, and Ken Bird. All were interviewed between 4 and 5 a.m. as they waited in line for entry into the US Supreme Court.