“I am scared for the safety and wellbeing of myself, those I love, and those within my community,” said Case Western Reserve University student Morgan Jones.
For members of the LGBTQ community, like Jones, the current Supreme Court term is set to be one of the most significant in history. Depending on how the court rules in just a few cases, many feel that the results could be disastrous.
On Tuesday, Oct. 8, the Supreme Court heard a series of three cases involving workplace discrimination against LGBTQ employees. The court will decide whether protections under Title VII of the Civil Rights Act apply to discrimination on the basis of sexual orientation and transgender status.
The first two cases, argued as a pair by Stanford law professor Pamela Karlan, concern two men who have asserted that they were fired by their employers for being gay. The central argument was that firing on the basis of same-sex attraction constitutes discrimination on the basis of sex, which is prohibited by Title VII. Karlan argued that “when a [sic] employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII.”
This pair of cases was followed by a third in which David Cole of the ACLU argued on behalf of a transgender woman who was explicitly fired by her employer because she, in the employer’s words, “was no longer going to represent himself as a man.” Cole argued that the firing constituted discrimination on the basis of sex because “if she had a female sex assigned at birth, she would not be fired. Because she had a male sex assigned at birth, she is fired.”
Since the last case argued before the court involving the rights of LGBTQ community members, Justice Anthony Kennedy, who had a history of ruling in favor of expanding rights to the gay community, retired and was replaced by Justice Brett Kavanaugh. This change in seating has left the court with a conservative bias, and legal analysts have indicated that the oral arguments point to a division of the justices along ideological lines.
Along with ideology, the perspective from which the justices approach the analysis of the meaning of a legal doctrine is at play. There is a division over whether to interpret Title VII from the plain meaning of the text itself, or whether to consider the original intent and perspective of its authors. Some justices have argued that prohibiting discrimination based on sexual orientation or gender identity “is a different policy issue from the one that Congress thought it was addressing in 1964.”
While Justice Neil Gorsuch has a conservative ideological leaning, he is a firm believer that the ultimate deciding factor in interpreting the meaning of a law is the text itself, rather than the consideration of who the legislators originally sought to protect, leaving him as the potential deciding vote in these cases.
Although the average American citizen is not regularly impacted by Supreme Court decisions, this ruling will have a direct impact on LGBTQ employees across the country because of the prominence of workplace discrimination. A survey conducted by the National Center for Transgender Equality found that 90 percent of transgender individuals surveyed had experienced some form of workplace harassment or discrimination, and surveys that have asked about instances of workplace discrimination on the basis of sexual orientation have also shown an alarming rate of occurrences.
Currently, less than half of the states in the country have passed laws specifically banning discrimination on the basis of sexual orientation and gender identity. This ruling will have a significant impact on how future rights protections for the LGBTQ community are approached by lawmakers across the country.
The new conservative majority and apparent division along ideological lines have left members of the LGBTQ community worried. Jones, who is a member of the Radical Student Union and highly involved in LGBTQ activism, noted that a lack of workplace protections could reverse the recent positive changes in the increased ability of queer people to express their identities, expressing fear that “an entire generation would be forced back into the closet, to their detriment.” They argued that many non-community members fail to understand that “it is a form of privilege to be able to talk about your personal life, your partner or your experiences comfortably within the workplace.”
“Our most basic rights are being decided by an oligarchical panel of lifelong bureaucrats and oppressors,” said Jones. “Instead of the people who are actually impacted by the decision.”
Discussion in the courtroom seemed to support the justices’ distance from the issue, as it frequently turned to cultural points of contention, including bathroom use and the separation of sports teams based on sex, despite the justices acknowledging that, in these cases, the court has not been asked to decide on these issues.
With the severity of what is at stake in these cases, and with the knowledge that these decisions may hang on one conservative-leaning justice’s vote, there is little optimism in the LGBTQ community for what is to come. Community members have expressed that workplace discrimination does not simply deal with the comfort of individuals in their working environment but with their ability to provide the necessary resources to support themselves and their families.
“Money is necessary for basic survival,” said Jones. “Depending on how the court rules, people will die.”