Just got out of oral arguments in the Title VII cases. I still think the five conservatives will rule that federal law does not bar LGBTQ employment discrimination. But it was not a slam dunk for either side. Kavanaugh said virtually nothing.
Solicitor General Noel Francisco told the court that LGBTQ equality will lead to men in women’s showers. Lots of arguments about bathrooms. Cringe-worthy.
Pam Karlan was INCREDIBLE. Her turn at the lectern was powerful and bold and witty and perfect. I was blown away.
Pam Karlan was INCREDIBLE. Her turn at the lectern was powerful and bold and witty and perfect. I was blown away.
Gorsuch claimed that interpreting Title VII to protect LGBTQ employees will cause “massive social upheaval.” He gestured toward open-mindedness on the textual argument but I think he will vote against LGBTQ rights.
Kavanaugh asked one question: Whether the anti-LGBTQ side was “drawing a distinction between the literal and ordinary meaning” of discrimination “because of sex.”
I’m not sure he has made up his mind. I suspect that when he does, he will side against LGBTQ rights.
I’m not sure he has made up his mind. I suspect that when he does, he will side against LGBTQ rights.
SG Francisco repeatedly argued that Congress wasn’t thinking about LGBTQ people when it passed Title VII in 1964. RBG responded that Congress wasn’t thinking about sexual harassment, either, but the court still recognizes it as sex discrimination. It was a powerful moment.
Gorsuch seemed ambivalent, but said that “when a case is really close on the textualist evidence,” the court should refuse to work “a drastic change in this country.” I think he will cast an anti-LGBTQ vote and claim judicial modesty.
On terminology, the justices did OK. Alito and Roberts seemed to avoid pronouns—lots of singular “they”! A few uses of “transgendered,” alas. Only Francisco used the term “cisgender”! The anti-trans lawyer used bigoted language, refusing to call trans people by the right pronoun.
There was a low-key beautiful moment when Kagan almost referred to a trans person’s “biological sex,” then stopped herself and thought for a moment and said “sex assigned at birth” instead. ❤️
Anyway I think the court will reject the argument for LGBTQ equality by a 5–4 vote, with the five conservatives claiming judicial modesty and saying Congress has to deal with this.
But I wouldn’t say there’s NO cause for hope. It was not a wipeout for LGBTQ rights by any means.
But I wouldn’t say there’s NO cause for hope. It was not a wipeout for LGBTQ rights by any means.
Correction here: Jeffrey Harris and John Bursch, who argued for the anti-LGBTQ employers, made the showers argument, not Francisco.
