Supreme Court Hears Oral Arguments In LGBTQ Employment Discrimination Case

Though the justices’ questions mostly indicated they are thinking along a typical liberal-conservative divide, Associate Justice Neil Gorsuch, a conservative, may be an outlier, saying, “It’s close … very close.”

By Rhonda Fanning & Jill AmentOctober 9, 2019 12:56 pm,

A new Supreme Court term started this week, and one of the first cases it’s hearing is one that consolidates several disputes over alleged employment discrimination against people who identify as LGBTQ. The plaintiffs argue that Title VII of the 1964 Civil Rights Act protects LGBTQ workers from being fired because of their sexual orientation or gender.

Emily Berman, associate professor at the University of Houston Law Center, says questions from the justices during Tuesday’s oral arguments led her to believe the case could be decided along ideological lines, with liberal justices agreeing with plaintiffs, and conservative justices questioning whether Title VII applies in this case. But the decision could turn on the views of Associate Justice Neil Gorsuch, a conservative member of the court. 

“It sounds as if it’s going to come down to Justice Neil Gorsuch, who appeared sympathetic to the plaintiffs, calling it a ‘close case,'” Berman says. “But at the same time, [he] was concerned about the social implications.”

Gorsuch referred to the “massive social upheaval” he believes a decision in favor of the plaintiffs could cause.

In past LGBTQ cases, Associate Justice Anthony Kennedy was the deciding vote in favor of extending civil rights protections, writing the court’s rulings in those cases. Kennedy left the court in 2018. 

Berman says the current case presents an interesting challenge to the typical liberal-versus-conservative divide on the court. Conservatives often argue that a statute should be interpreted “textually” – in other words, the justices should not attempt to determine the lawmakers’ intent when deciding a case. Liberals, on the other hand, often argue that what Congress intended is relevant to the case at hand, even if that intent can’t be found in the actual text of the law. In the current case, liberals argue that discrimination based on sex, which is prohibited by Title VII of the Civil Rights Act, includes sexual orientation. 

“It’s a very textual argument – usually the kind of argument that conservatives make,” Berman says.

She says conservatives, on the other hand, say Congress did not intend to cover LGBTQ discrimination in the Civil Rights Act.

Berman says a decision could come any time during the Supreme Court term that ends in June of next year.  


Written by Shelly Brisbin.