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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. The stakes are

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Speaker 1: high for millions of gay, lesbian, bisexual, and transgender employees.

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Speaker 1: The Supreme Court will discide whether federal law bars employers

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Speaker 1: from discriminating against gay and transgender people. It's a question

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Speaker 1: that has divided the Federal Appeals Court and federal agency.

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Speaker 1: Joining me is Michael Dorff, a professor at Cornell Law School. So, Michael,

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Speaker 1: this is about interpreting the Civil Rights Act of nineteen

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Speaker 1: sixty four. What's the basic question in all three cases

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Speaker 1: that the Court will consider whether the language in Title seven,

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Speaker 1: which is the UH provision of that Act that governs

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Speaker 1: employment discrimination that forbids sex to discrimination, encompasses discrimination based

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Speaker 1: on sexual orientation in two of the cases and gender

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Speaker 1: identity in the third case. Federal appellate courts across the

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Speaker 1: country have considered the issue. How have they come out so?

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Speaker 1: For a long time the courts said that sex discrimination

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Speaker 1: does not include sexual orientation or gender identity discrimination. But

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Speaker 1: the trend in recent years has been in the other direction. UH, partly,

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Speaker 1: I think, in response to the broader acceptance of UH

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Speaker 1: equal rights for LGBT individuals, and partly in response to

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Speaker 1: the US Equal Employment Opportunity commissions own determination to treat

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Speaker 1: those forms of discrimination as covered by the sex discrimination prohibition.

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Speaker 1: The issue of sex extending to sexual orientation wasn't part

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Speaker 1: of the conversation in nine when the Civil Rights Act

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Speaker 1: was passed. Does that mean that textualists on the Court

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Speaker 1: will find that the law doesn't cover sexual orientation? No,

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Speaker 1: I think on the contrary, there's a very good argument,

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Speaker 1: based strictly speaking on the text, that the intentions of

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Speaker 1: the lawmakers um that we're not expressed in the text,

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Speaker 1: don't matter. There is a very important case from the

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Speaker 1: late nineteen nineties involving sexual harassment, in which Justice Scalia,

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Speaker 1: writing for the Court, said, we're governed by the language

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Speaker 1: of our laws, not the intentions of our lawmakers, and

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Speaker 1: here that language is discrimination based on sex. The most

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Speaker 1: straightforward argument is if you're firing somebody because of the

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Speaker 1: sex of their partner, and if the person you're firing

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Speaker 1: would not be fired had been a man rather than

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Speaker 1: a woman. Therefore it had been an opposite sex relationship. Well,

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Speaker 1: that's discrimination based on sex, right, That's the nature of

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Speaker 1: sexual orientation discrimination. The same thing with the gender identity

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Speaker 1: where you're enforcing uh, sex stereotypes. So then, looking at

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Speaker 1: the court as it is now, do you believe that

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Speaker 1: they will find that this ban on workplace discrimination extends

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Speaker 1: to gender identity. I think that there are at least

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Speaker 1: four votes of the Democratic appointees for that proposition. I

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Speaker 1: think for the Conservative justices, the case pits there jurisprudential beliefs, right,

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Speaker 1: this idea that you just follow the text regardless of

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Speaker 1: what it was intended against their social views, which is

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Speaker 1: I'm not saying that they support sex orientation discrimination or

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Speaker 1: gender identity discrimination, but they probably think that this is

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Speaker 1: something that the society needs to come to independently and

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Speaker 1: that never really happened, or something like that. So I

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Speaker 1: think that the challenge for the plaintiffs in these cases

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Speaker 1: is to convince at least one of the Conservative justices

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Speaker 1: either to just go of your views about text controlling

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Speaker 1: over legislative intentions or and I think this may be

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Speaker 1: an easier road to hold to say that, look, the

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Speaker 1: society has changed, and people now understand in the way

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Speaker 1: we didn't in the past that sex orientation discrimination and

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Speaker 1: gender identity discrimination are harmful, and they're harmful in many

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Speaker 1: of the same ways that old fashioned sex discrimination is.

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Speaker 1: The Supreme Court has issued rulings that said same sex

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Speaker 1: harassment is protected and gender stereotyping. Could they really come

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Speaker 1: out and basically say you can fire someone because they're transgender? Well,

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Speaker 1: I hope not, um, I think what they So, there

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Speaker 1: are a number of possibilities. You know, the defendants in

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Speaker 1: these cases, uh say that the law doesn't apply, but

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Speaker 1: they also say that they didn't engage in the alleged conduct.

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Speaker 1: I think it's possible that the court would say, well,

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Speaker 1: if you're firing somebody because of stereotyping, that's one thing,

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Speaker 1: but gender identity is something else. Now, I think that's

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Speaker 1: a very difficult line to draw, given what we think

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Speaker 1: that gender identity consists of. But I think it would

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Speaker 1: have to turn on some notion that there's a different

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Speaker 1: kind of harm in gender identity or sex orientation discrimination.

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Speaker 1: I'm not inclined to make that argument because I don't

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Speaker 1: believe it. But I think that's the sort of thing

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Speaker 1: they would have to say if they were to go there,

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Speaker 1: you clerk for Justice Anthony Kennedy. Is this case in

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Speaker 1: any way a test of whether his legacy in defense

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Speaker 1: of gay rights will withstand a more conservative court? I

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Speaker 1: think so. Of Course, the Court did not decide this

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Speaker 1: issue while Justice Kennedy was an active member, and so

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Speaker 1: in that sense, it's not a direct challenge to his legacy.

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Speaker 1: But of course he was the author of the four

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Speaker 1: major gay rights cases, all finding in favor of the

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Speaker 1: rights of the challengers in those cases. And so if

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Speaker 1: the Court were to cut back here, I think that

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Speaker 1: would be a signal that at the very least, they're

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Speaker 1: not likely to extend his legacy, and potentially, uh, it

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Speaker 1: could be in danger itself. So the Trump administration shifted

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Speaker 1: the government's position in court filing that federal law doesn't

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Speaker 1: prohibit sexual orientation discrimination. At the second Circuit, you had

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Speaker 1: the E e O C arguing on one side of

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Speaker 1: the case and d O J on the other. I

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Speaker 1: know that's happened before, But shouldn't the government have a

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Speaker 1: unified approach in these matters? You would think so? Um,

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Speaker 1: the you know, the there is there's a technical question there,

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Speaker 1: which is what kind of deference, if any, is owed

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Speaker 1: to the government when the government disagrees with itself. But

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Speaker 1: I think there's also a question about expertise that in

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Speaker 1: some ways transcends this issue. You know, the the question

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Speaker 1: is to what extent do we think the executive brand

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Speaker 1: should be just making political statements versus um applying some

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Speaker 1: kind of knowledge. And that issue arose, you know, in

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Speaker 1: yesterday's or an argument in the Census Bureau case where

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Speaker 1: the challengers to the inclusion of the citizenship questions said, look,

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Speaker 1: this isn't supported by the data, and the government basically argued, well,

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Speaker 1: the UH Secretary Ross can make a determination for himself,

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Speaker 1: and it's you know, they didn't say it was political,

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Speaker 1: but everybody knew it was political. So I think that's

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Speaker 1: what's going to be going going on here as well.

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Speaker 1: It seems as if everyone who was at the argument

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Speaker 1: said that it appears that five conservative justices were going

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Speaker 1: to support the addition of the citizenship question. And my

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Speaker 1: question is Justice Roberts has said time and time again

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Speaker 1: he doesn't want the Court to be a political institution

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Speaker 1: dealing with these political questions, and won't that be so political? Uh? Inevitably,

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Speaker 1: But you know, I think Chief Justice Roberts has had

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Speaker 1: very limited success us in tamping down strong divisions in

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Speaker 1: big cases. There. I think he's had an effect that

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Speaker 1: the margins, and maybe he's affected interpersonal relations on the court.

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Speaker 1: But you know, on these very divisive questions, the justices

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Speaker 1: druthers are going to prevail, including his own sometimes. So

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Speaker 1: pleasure having you all and come back again. That's Michael

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Speaker 1: Dorpy is a professor at Cornell Law School. Thanks for

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Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and

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Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on

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Speaker 1: Bloomberg dot com slash podcast. I'm June Brosso. This is

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Speaker 1: Bloomberg