Supreme Court Just Made Everybody Gay And Transgender Again, Thanks A Lot, Neil Gorsuch!
To those of us on the right side of history, it's always seemed like a legal no-brainer that laws like Title VII of the Civil Rights Act of 1964, which ban discrimination based on sex, would clearly ban discrimination against gay and transgender folks, since you cannot ipso facto discriminate against gay and transgender folks for being gay and transgender without discriminating against them on the basis on sex. It's literally right there in the words!
And in the most pleasant shock we've had in a while, the Supreme Court, in an opinion written BY TRUMP JUSTICE NEIL GORSUCH, agrees that you cannot fire people for being gay or transgender under Title VII. Gorsuch wrote for the Court, joined by Roberts and the good justices. Alito and Thomas dissented, and Kavanaugh dissented separately all by himself, because we guess he's still mad we made fun of him for loving beer so much.
The ruling is pretty straightforward:
Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Or more simply:
[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
Or put another way, elsewhere in the ruling:
At bottom, these cases involve no more than the straight-forward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of a sex. That has always been prohibited by Title VII's plain terms -- and that "should be the end of the analysis."
And apparently, now it is.
Like we said, this has been abundantly clear to those of us on the right side of history forfuckingever. It's amazing, and pleasantly surprising considering the current status of the Court and where we currently are in American history, that the Supreme Court at last agrees.
The Court ruled on three cases together: Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. SCOTUSBlog has some good background on the cases, as does Ye Olde Wonkette. Zarda and Bostock were sexual orientation cases, and Harris Funeral Homes is about transgender discrimination in the workplace.
During the Obama administration, the Justice Department stopped defending discriminatory interpretations of both Title VII (of the Civil Rights Act of 1964) and Title IX (of the Education Amendments Act of 1972). Both Justice and Obama's Equal Opportunity Employment Commisssion (EEOC) stated flat-out that workplace discrimination against LGBT people was discrimination based on sex, because of how that was just obviously true.
But then Trump happened. And because elections matter to real people with real lives, the Trump Justice Department reverted, as it always does, to siding with the oppressor, in these and pretty much all other civil rights cases. (To be fair, sometimes the Trump Justice Department just sides with the criminal that happens to be friend with Donald Trump.)
Not only did Trump's best boy (a status that may now be under review) Gorsuch side with the plaintiffs, he even wrote his ruling without misgendering the transgender plaintiff:
BTW, Justice Gorsuch follows the "Don't Be An Asshole" Rule and uses the female pronoun to refer to the trans emplo… https://t.co/0Lmc5SPYaf— Gabriel Malor (@Gabriel Malor)1592230313.0
It may be shocking to some of us that Gorsuch not only did this, but even wrote the opinion, but it's actually not entirely shocking, for a couple reasons.
One is that Gorsuch clings to his status as a "textualist," -- i.e. his overriding philosophy is that laws should be interpreted by what the text actually says, no more and no less. He's not concerned with the backstory or context. A lot of very smart legal people were very curious, when these cases were argued, whether he would still get it, when it involves something big and gay and liberal like this, or if he'd be a great big huge hypocrite. It would appear he got it, based on a clear interpretation of the actual words of the statute.
There were clues during oral arguments. The Washington Blade provided some excerpts:
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 an employer firing a man for being attracted to another man as an example of sex discrimination. [...]
Gorsuch posed one question in particular to David Cole, national legal director for the American Civil Liberties Union, that may best offer a glimpse into the justice's internal views.
"Assume for a moment that I'm with you on the textual argument," Gorsuch said. "Should the court be concerned about the massive social upheaval that would ensue?"
If you want a cherry on top, as if you even needed one with this rare good news, you should know that the attorney who argued for the plaintiffs in the two cases involving anti-gay discrimination was none other than your favorite Trump impeachment witness Pam Karlan, who made Donald Trump very mad when she cruelly attacked Trump's young son by saying that while his name may be "Barron," his dad is not literally allowed to make him a "baron."
So that's fun.
Wonkette will have much more legal analysis from a lawyer on these rulings later today, but for now we will just leave you with a couple reactions from real leaders.
Being who you are shouldn’t be a fireable offense, and today the Supreme Court has affirmed that truth for the LGBT… https://t.co/hT3YHEUyUk— Hillary Clinton (@Hillary Clinton)1592230981.0
No one should have to live in fear of discrimination. The Supreme Court’s decision to uphold protections for LGBTQ+… https://t.co/JqWGjggBOj— Elizabeth Warren (@Elizabeth Warren)1592230515.0
And also this right here, this is a good tweet:
States where you can now work as openly LGBTQ without fear of being fired are shaded in gray https://t.co/LqouK6Bt2D— Michael Del Moro (@Michael Del Moro)1592230631.0
Even in Trump's America, progress just keeps on progressing. At least once in a while.
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