Trump Nominees Could Play Pivotal Role As Supreme Court Decides On Protections For Gay, Transgender Workers

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Publish Date:
October 8, 2019
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The Washington Post
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The Supreme Court appeared divided Tuesday about whether federal discrimination laws protect gay and transgender workers, and President Trump’s appointments to the court could play the pivotal roles in deciding the outcome.

The issue, one of the most significant facing the court this term, concerns the reach of ­Title VII of the Civil Rights Act of 1964, which, besides protecting against workplace discrimination because of race, religion and other characteristics, also prohibits discrimination “because of sex.” The court has since interpreted that definition to include discriminating on the basis of sex stereotypes.

Stanford University law professor Pamela S. Karlan, representing the two gay employees, said the court need not update the 1964 law to find that sex plays a role when someone is fired because of sexual orientation.

When you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex,” Karlan said.

Justice Ruth Bader Ginsburg at times seem to throw objections at Karlan so she could bat them down.

“Ms. Karlan, how do you answer the argument that back in 1964, this could not have been in Congress’s mind because in many states male same-sex relations was a criminal offense; the American Psychiatric Association labeled homosexuality a mental illness,” Ginsburg said.

“Well, I think you read the words of the statute,” Karlan replied. “And this court has recognized again and again forms of sex discrimination that were not in Congress’s contemplation in 1964,” mentioning sexual harassment and stereotypes.

“For many years, the lodestar of this court’s statutory interpretation has been the text of a statute, not the legislative history, and certainly not the subsequent legislative history,” she said. “And the text of the statute appears to be pretty firmly in Ms. Karlan’s corner. Did you discriminate against somebody, against her client, because of sex?”

Roberts asked the workers’ attorney what new protections would mean for religious organizations. Karlan responded that exemptions already exist for those with religious objections to hiring gay workers.

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