What the Supreme Court’s Ruling on LGBT Work Protections Says
It’s worth celebrating. The Supreme Court ruled 6–3 that Title VII, which prevents employment discrimination due to “sex” also applies to gender identity and sexual orientation. The grounds boil down to the fact that if you fire a man for sleeping with men when you would not fire a woman for doing so, sex is a component of your decision.
The decision in the current court was a surprise: The current Supreme Court has elicited worries amongst progressives for being “too conservative” and was considered likely to take the opportunity to strip rights from queer people.
Who Was On Each Side?
The following justices formed the majority: Roberts, Ginsburg, Breyer, Sotomayor, Kagan and Gorsuch. The last is probably the largest surprise. Gorsuch was the first of Trump’s two appointees to the court and was widely expected to rule otherwise.
The dissenting side was split. Alito and Thomas dissented, and so did Trump’s second appointee, the rather infamous Kavanaugh…but Kavanaugh chose to write his own dissenting opinion rather than go in with Alito as would have been expected.
Gorsuch wrote the majority opinion.
What Was the Actual Grounds of the Decision?
The majority decision was made on simple grounds: As society has progressed, we now have a bit of a different idea of sex discrimination, which has come to include orientation and gender identity. Congress should have made another law if they didn’t want these things to be excluded. The decision also centered around the fact that Title VII protects individuals, not men or women as a class; therefore the fact that an employer might fire both gay men and lesbians does not constitute equal treatment. (You can read the full opinion here, if you have time. It’s long).
Alito and Kavanaugh both argue in dissent that Congress clearly did not mean to protect LGBT people in 1964. Alito, unsurprisingly, goes into biological essentialism, defining sex by genitalia, and includes multiple definitions of the word sex to prove his point. He also takes time to insult the majority. I don’t envy people who have to work with him. Oh, and then there’s a side step into “Homosexuality was illegal in 1964 so we can’t change the meaning of a law written then to encompass it.”
Yet, even Alito does not really go as far as to say or even imply that queer people shouldn’t have employment protection. (He probably shouldn’t be implying trans people were invented in 1980, though. Which he gets dangerously close to doing). His dissent is not comfortable to read, but makes one thing clear:
The argument was not about morality or what “should” be but about how one reads laws written in the past. And this is actually pretty important.
What About Kavanaugh?
So, why did Brett Kavanaugh write a separate dissent?
Unlike Alito, Kavanaugh shows considerably more respect for his coworkers, disagreeing in a much more respectful manner.
And it includes this.
“Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit — battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”
This…is a direct quote from Brett Kavanaugh, a man who in my opinion should never have been nominated because of his treatment of women, a man appointed by Trump.
It’s incredibly clear from Kavanaugh’s dissent that he did not want to make the decision he did, that he was sticking by his principles. His words constitute an apology.
Pence’s face must be turning red.
So, what does this really say:
It says that the current court is not a disaster for progress and civil rights. It says that they are doing their job: Arguing about interpretations. (If each side is accusing the other of legislating from the bench then that’s probably a good thing).
It says that something in our broken system is still working.
So, we need to celebrate the decision. We also need to celebrate that the system is working. And that a conservative judge is acknowledging that LGBT Americans deserve equal treatment in fact and in law.
(But don’t let it distract us from the problems we still have).