There’s a certain frustration regarding the law: the feeling that it should be pragmatic and just, but that its intricacies sometimes get in the way.
It is, of course, the tension between the two concepts that leads to intricacy.
Consider, for example, the question of whether employers should be able to fire people for being gay. In an Economist/YouGov poll in October 2019, just 11% of respondents said yes. Support for the ability to fire transgender workers for wearing work clothes that match their gender identity was twice as high at 20%, but that’s still scarcely more than the number of people who persist in smoking cigarettes daily. (On these subjects, popular opinion appears to stand in contrast with the direction of the Trump administration, which recently issued a rule narrowing the legal definition of sex discrimination in the Affordable Care Act.)
With that kind of support for equal treatment under the law — and with an absence of laws in most states protecting the country’s estimated 8.1 million LGBT workers from employment discrimination — Americans might have been justifiably concerned about the outcome of three cases before the U.S. Supreme Court. All had to do with the questions above and were combined into one decision to rectify disparate appellate court rulings. Would the high court, leaning toward the textualist impulses of the Federalist Society, reject protections for LGBT people under existing law and insist that any such language must be written and approved by Congress? (“Textualist” meaning using the plain text of legislation and no other context to interpret its intent; “Congress” meaning “deadlock” and “inaction.”)
The answer, received in a ruling Monday, is that textualism can cut both ways.
The intricacy the Supreme Court was dealing with had to do with whether firing people for being gay or transgender is prohibited under Title VII of the Civil Rights Act of 1964.
But it’s really not that intricate, declared the 6-3 majority. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. “This Court has explained many times over many years,” wrote Justice Neil Gorsuch for the majority, “that, when the meaning of the statute’s terms is plain, our job is at an end.”
But wait — is the meaning of “sex” so very plain? It is to Gorsuch. Despite what people may have thought it was in 1964 — or failed to imagine it could become — a person’s identified gender cannot be separated, he wrote, from actions they might pursue as an individual of that gender. And if an individual (he emphasized the use of this word in the law as opposed to groups) would not have been fired “but for” gender, Title VII has been violated.
And that’s where the textualists diverged. In a dissent, Justice Brett Kavanaugh accused the majority of using the guise of strict interpretation to reach a loose destination, in the process usurping the role of Congress. And Justice Samuel Alito, in a dissent joined by Justice Clarence Thomas, offered a laundry list of complications that might flow from Monday’s ruling, including the use of bathrooms and locker rooms, room assignments at colleges, employment by religious organizations, health care benefits, and even the freedom of speech as it applies to personal pronouns.
Alito isn’t wrong — those questions are coming, though it’s worth mentioning that both his and Kavanaugh’s dissents acknowledged society’s interest in equality for gay and transgender people. Gorsuch, for his part, simply noted that ripple effects weren’t the immediate question before the court.
It’s also worth mentioning that the coming stretch of weeks is prime time for court rulings, which is to say, events that will have a large impact on people’s lives. Still to come this year are decisions on immigration policy, consumer protection and congressional access to the president’s personal financial records, among others. Because the pandemic has thrown off even the court’s tight scripting, some of those rulings may come later in the season than usual.