SCOTUS to Rule on LBGT Discrimination

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As I noted in a prior post, it would be preferable if the Supreme Court ruled that existing sex discrimination laws covered sexual orientation and gender transition (perhaps unlikely, post-Kennedy) than if Congress were to pass the sweeping Equality Act, with its greatly expanded definition of public accommodations to include small creative-services providers and its crippling of the Religious Freedom Restoration Act—not to mention defining “sex” as gender presentation without any pretense about physical transitioning (meaning bio-males in women’s locker rooms and sporting competitions, based on their identity “presentation”).

If the Supreme Court were to expand existing Title VII civil rights protections to gay and transgender people, Democrats and LGBT intersectional progressives would still try to pass the Equality Act—but they’d have to do so arguing in favor of its more extreme provisions instead of presenting it as a jobs discrimination bill.

5 Comments for “SCOTUS to Rule on LBGT Discrimination”

  1. posted by Tom Scharbach on

    I will be very surprised if the Alito/Gorsuch/Kananaugh/Thomas Court rules that either sexual orientation or gender identity are protected by the existing language of the Civil Rights Act of 1964. Chief Justice Roberts, who is now the “swing vote” on the Court, has, on occasion, defied the conservatives and voted with Breyer/Ginsburg/Kagan/Sotomayer, but to date he has done so only when Alito/Gorsuch/Kananaugh/Thomas have attempted to overturn existing precedent. This case does not present that situation.

    • posted by JohnInCA on

      The real question to me isn’t whether or not they’ll rule that LGBT discrimination is sex discrimination.

      The real question is how much other precedent they’ll axe on the way to reach that conclusion.

      Alternatively, they could keep other precedent and make an exception for gay folk, but that wouldn’t be internally consistent. Does the court still care about internal consistency? I’m not sure it does.

  2. posted by Mike King & David "TJ" Bauler on

    I doubt very much that the court wants to treat sex discrimination as a form of anti-gay or anti-trans discrimination. Other courts in other nations have done so, but few have done so within the United States. at least in terms of the private sector and the civil rights act. In a 1998 case the court ALMOST did so with regards to sexual harassment.

  3. posted by Jorge on

    As I noted in a prior post, it would be preferable if the Supreme Court ruled that existing sex discrimination laws covered sexual orientation and gender transition (perhaps unlikely, post-Kennedy) than if Congress were to pass the sweeping Equality Act, with its greatly expanded definition of public accommodations to include small creative-services providers and its crippling of the Religious Freedom Restoration Act—not to mention defining “sex” as gender presentation without any pretense about physical transitioning (meaning bio-males in women’s locker rooms and sporting competitions, based on their identity “presentation”).

    I would much rather have such a thing done legislatively than to have yet another high pronouncement of judicial legislation shake the country. Even if it’s one of statutory interpretation.

    Well, actually, I’m mostly sold on the argument when it comes to gender identity, except that I frankly think there should be room for reasonable accommodations in the law, similar to what we see with persons with disabilities. Too bad, that’s not a part of the sex discrimination part of the Civil Rights Act.

    With sexual orientation Congress needs to make up its mind and decide if it wants to pass the damn law or not.

    Given Justice Thomas’s concurring opinion in the unanimous 1998 Oncale v. Sundowner Offshore Services Inc. (joining the opinion finding male-on-male sexual harassment is prohibited because Title VII prohibits discrimination based on “sex”), I mostly expect the Court to rule prohibited discrimination occurred in the transgender case. As Oncale showed, discrimination is as much about perception as it is about reality. Employment discrimination cases, more than other types of discrimination cases, are about isolating perception from reality.

    Of course, the Court could always rule transgender people are only protected as a disability class.

    I think the gay case could go either way.

  4. posted by Mike King & David "TJ" Bauler on

    Jorge

    you said: Of course, the Court could always rule transgender people are only protected as a disability class.

    Um no. The Federal Disability Act does not apply to transgender people.

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