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October 8, 2019 at 11:07 am PST | by Chris Johnson
Gorsuch emerges as possible LGBT ally in Supreme Court arguments

Jeff Zarillo, Paul Katami, Sandy Stier, Kris Perry, David Boies, Chad Griffin, gay marriage, same-sex marriage, marriage equality, Proposition 8, Defense of Marriage Act, DOMA, Prop 8, California, Supreme Court, gay news, Washington Blade

The U.S. Supreme Court hear arguments on LGBT-inclusion under Title VII. (Washington Blade file photo by Michael Key)

When the dust cleared Tuesday after two hours of arguments at the U.S. Supreme Court on whether anti-LGBT discrimination is prohibited under federal civil rights law, U.S. Associate Justice Neil Gorsuch emerged a potential — but not definite — potential ally for LGBT workers.

Gorsuch, a Trump-appointed justice who considered himself a textualist, asked many questions suggesting he’s at least considering the idea of anti-LGBT discrimination is a form of sex discrimination, thus prohibited under Title VII of the Civil Rights Act of 1964.

If LGBT rights supporters eke out a victory from the Supreme Court in its decision, they may well have Gorsuch on the divided court for crossing them over the finish line.

Throughout the arguments, Gorsuch made several inquiries on whether the concept of sex is inseparable from anti-LGBT discrimination. At one point, Gorsuch asked, “Isn’t sex also at play here?” and gave an example of a employer firing a man for being attracted to another man as an example of sex discrimination.

To be sure, Gorsuch also asked questions about whether employers could keep sex-segregated bathrooms under LGBT-inclusive Title VII.

Gorsuch poised one question in particular the David Cole, national legal director for the American Civil Liberties Union, that may best offer a glimpse in the justice’s internal.

“Assume for a moment that I’m with you on the textual argument. Should the court be concerned about the massive social upheaval that would ensue?”

(With respect to transgender protections. Cole said there would be no upheaval, citing decades of case law affirming anti-trans discrimination is a form of sex discrimination.)

The Supreme Court agreed to the adjudicate LGBT workplace as a result of taking up the consolidated cases of Zarda v. Altitude Express and Bostock v. Clayton County, which seeks resolution on whether anti-gay discrimination is illegal under Title VII, and EEOC v. Harris Funeral Homes, which seeks resolution on whether anti-trans discrimination is illegal under the law.

According to the Williams Institute at the University of California, Los Angeles, non-discrimination protections for an estimated 4.1 million LGBT people in states without LGBT civil rights are at stake in the upcoming decision.

Although Title VII relates specifically to employment, any decision the Supreme Court reaches will have impact on other laws barring sex discrimination, such as the Fair Housing, the Affordable Care Act and Title IX of the Education Amendments of 1972. Therefore, the decision will impact LGBT people not just in the workplace, but also housing, health care and education.

Gorsuch was one of three justices who were carefully under watch during oral arguments as potential swing votes on whether LGBT people is prohibited under Title VII.

Another was Chief Justice John Roberts, who during the 2015 marriage equality arguments entertained the idea of anti-gay discrimination being a form of sex discrimination.

But four years later in the Title VII arguments, Roberts was unequivocally on the side anti-LGBT discrimination is not a form of sex discrimination.

Roberts’ questions pointed out Congress didn’t intend to include LGBT people in 1964, bathroom issues and states doing the job to ban anti-LGBT discrimination.

Another justice of interest was Brett Kavanaugh, but the newly confirmed Trump appointee kept his cards exceedingly close to his vest.

Kavanaugh asked only one question: A legal technical inquiry on the difference between the plain and ordinary meaning of Title VII.

The oral arguments on the two issues consisted of two hours with discussion on sexual-orientation discrimination in the first hour and anti-transgender discrimination in the second.

But the discussion on both subjects often sloshed over the both sides. For example, the question of transgender people using bathrooms came during sexual-orientation portion, and John Bursch, a lawyer with Alliance Defending Freedom, brought up the idea of religion institutions being able to terminate employees who enter into a same-sex marriage.

It’s certainly possible the Supreme Court could reach one decision with respect to transgender employees, and another with respect to gay, lesbian and bisexual workers (especially considering the case law among lower courts for transgender people is significantly more developed). But justices gave no indication whatsoever they’d reach two separate decisions.

It’s unclear when the Supreme Court will render its decision, but because justices are hearing the cases early in their term, they’re expected to issue a ruling well before the terms ends in June 2020.

More to come…

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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