1 00:00:03,520 --> 00:00:07,040 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,120 --> 00:00:09,680 Speaker 1: day we bring you insight and analysis into the most 3 00:00:09,720 --> 00:00:12,200 Speaker 1: important legal news of the day. You can find more 4 00:00:12,240 --> 00:00:16,160 Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud 5 00:00:16,280 --> 00:00:20,120 Speaker 1: and on Bloomberg dot com slash podcasts. For two decades, 6 00:00:20,239 --> 00:00:23,919 Speaker 1: most of the LGBT movement's highest profile victories have come 7 00:00:23,960 --> 00:00:27,360 Speaker 1: at the Supreme Court, from legalizing gay sex in two 8 00:00:27,440 --> 00:00:31,920 Speaker 1: thousand three to legalizing gay marriage and twenty But as 9 00:00:31,920 --> 00:00:34,559 Speaker 1: they say, that was then, and this is now and 10 00:00:34,680 --> 00:00:38,920 Speaker 1: next year, a more conservative court could deal lgbt Q 11 00:00:39,280 --> 00:00:42,280 Speaker 1: rights a real blow. Joining me is Steve Sanders, a 12 00:00:42,280 --> 00:00:46,640 Speaker 1: professor at Indiana University's Mara School of Law. So, Steve, 13 00:00:46,760 --> 00:00:49,440 Speaker 1: the Court has decided to accept for next term a 14 00:00:49,600 --> 00:00:53,960 Speaker 1: trio of cases involving a child welfare worker, a skydiving instructor, 15 00:00:53,960 --> 00:00:57,720 Speaker 1: and a funeral director. Tell us about the basic issues 16 00:00:57,920 --> 00:01:01,720 Speaker 1: in the cases under title seven. M sure, Jan, Well, 17 00:01:01,760 --> 00:01:04,720 Speaker 1: as you said in the opening, the big cases where 18 00:01:04,880 --> 00:01:08,319 Speaker 1: gays and lesbians have achieved landmark victories of the Supreme 19 00:01:08,400 --> 00:01:11,880 Speaker 1: Court have been under the Constitution, either under principles of 20 00:01:11,959 --> 00:01:15,560 Speaker 1: liberty or under equal protection. All three of these cases 21 00:01:15,600 --> 00:01:19,440 Speaker 1: the Court has accepted for next year involved interpretations of 22 00:01:19,480 --> 00:01:22,679 Speaker 1: the Civil Rights Act of nineteen sixty four, Title seven. 23 00:01:22,720 --> 00:01:25,520 Speaker 1: As you said, in nineteen sixty four, Congress passes a 24 00:01:25,600 --> 00:01:30,039 Speaker 1: law which prohibits discrimination in employment on the basis of 25 00:01:30,160 --> 00:01:33,120 Speaker 1: race and on the basis of sex, in addition to 26 00:01:33,160 --> 00:01:36,240 Speaker 1: a number of other categories. Basically, the question in all 27 00:01:36,240 --> 00:01:41,480 Speaker 1: of these cases is does sex include either sexual orientation 28 00:01:41,760 --> 00:01:45,400 Speaker 1: or gender identity? That is, when a gay or lesbian, 29 00:01:45,520 --> 00:01:49,640 Speaker 1: or transgender person is fired from a job or otherwise 30 00:01:49,920 --> 00:01:54,480 Speaker 1: subjected to an adverse employment action because of their sexual 31 00:01:54,520 --> 00:01:58,800 Speaker 1: orientation or because of their gender identity, is that encompassed 32 00:01:58,840 --> 00:02:02,280 Speaker 1: within the meaning of the words sex in Title seven. 33 00:02:02,760 --> 00:02:05,840 Speaker 1: The argument that it's not essentially stems from the idea 34 00:02:05,920 --> 00:02:10,000 Speaker 1: in nineteen sixty four Congress could not possibly have imagined 35 00:02:10,440 --> 00:02:13,840 Speaker 1: that it was dealing with issues of sexual orientation or 36 00:02:13,840 --> 00:02:17,880 Speaker 1: gender identity. It understood itself to be essentially protecting women 37 00:02:17,919 --> 00:02:22,080 Speaker 1: against discrimination in the workplace. But two federal courts of 38 00:02:22,120 --> 00:02:25,160 Speaker 1: appeals that have come to the conclusion that Title seven 39 00:02:25,200 --> 00:02:28,680 Speaker 1: does cover sexual orientation have said, look, basically, if you 40 00:02:28,720 --> 00:02:31,040 Speaker 1: want to have a relationship with a man, if you 41 00:02:31,080 --> 00:02:33,840 Speaker 1: are a woman, that's fine in the eyes of your employer. 42 00:02:33,880 --> 00:02:36,560 Speaker 1: If you're a man, that's not fine, and you could 43 00:02:36,600 --> 00:02:39,800 Speaker 1: be fired. Well, that's just discrimination on the basis of sex, 44 00:02:39,840 --> 00:02:43,359 Speaker 1: whether you're a man or a woman. And similarly, a 45 00:02:43,360 --> 00:02:47,440 Speaker 1: case from Kentucky involving a funeral director of funeral home 46 00:02:47,840 --> 00:02:50,680 Speaker 1: a person who is transgender said that they were fired 47 00:02:50,680 --> 00:02:53,960 Speaker 1: to meet. The idea that gender identity is intertwined with 48 00:02:54,120 --> 00:02:56,760 Speaker 1: sex does not seem to be a stretch, but we 49 00:02:56,840 --> 00:02:59,840 Speaker 1: will see what the court decides. These cases are not 50 00:03:00,040 --> 00:03:04,519 Speaker 1: about the broad principles of equality and liberty in the Constitution. 51 00:03:04,919 --> 00:03:08,079 Speaker 1: They're really about you know what do words in federal 52 00:03:08,120 --> 00:03:13,520 Speaker 1: statutes passed by Congress actually mean? Linguistics. The Supreme Court 53 00:03:13,600 --> 00:03:19,400 Speaker 1: ruled in that Title seven prohibits gender stereotyping, So how 54 00:03:19,520 --> 00:03:24,760 Speaker 1: is sexual orientation different from that? Well, that that's uh. 55 00:03:25,080 --> 00:03:28,840 Speaker 1: That insight is exactly has been critical to the court 56 00:03:28,919 --> 00:03:33,920 Speaker 1: cases that have said Title seven encompasses gender identity and 57 00:03:33,960 --> 00:03:36,840 Speaker 1: sexual orientation. There's a bit of bootstrapping. As you said, 58 00:03:36,880 --> 00:03:41,680 Speaker 1: there's a a price Waterhouse versus Hopkins case. The Supreme 59 00:03:41,720 --> 00:03:47,200 Speaker 1: Court said that gender stereotypes about gender stereotypes, about what 60 00:03:47,240 --> 00:03:49,480 Speaker 1: it means to be a man or a woman, how 61 00:03:49,520 --> 00:03:53,560 Speaker 1: a woman should present herself to the world, what characteristics 62 00:03:53,600 --> 00:03:56,480 Speaker 1: they have, what they're capable of doing in the workplace, 63 00:03:56,840 --> 00:04:00,440 Speaker 1: that those that kind of discrimination is covered by seven. 64 00:04:00,480 --> 00:04:04,720 Speaker 1: So that's a critical logical step um in the reasoning 65 00:04:04,760 --> 00:04:07,880 Speaker 1: of the courts that have applied Title seven to gaze 66 00:04:07,880 --> 00:04:11,120 Speaker 1: and lesbians and transgender people. I think there are some 67 00:04:11,400 --> 00:04:15,320 Speaker 1: scholars who actually fear that in taking these cases, the 68 00:04:15,360 --> 00:04:19,000 Speaker 1: Supreme Court might step back, might pull back from that 69 00:04:19,160 --> 00:04:22,599 Speaker 1: idea that it announced in the Price Waterhouse case about 70 00:04:22,680 --> 00:04:25,360 Speaker 1: gender stereotyping, or it might or at least might seek 71 00:04:25,440 --> 00:04:29,400 Speaker 1: to put some limits, some boundaries around the idea of 72 00:04:29,440 --> 00:04:34,239 Speaker 1: what types of gender stereotypes implicate Title seven. So, Steve, 73 00:04:34,640 --> 00:04:39,000 Speaker 1: gay rights advocates have been meeting some resistance at the 74 00:04:39,080 --> 00:04:43,800 Speaker 1: Supreme Court even before Justice Kennedy left. How much are 75 00:04:43,839 --> 00:04:49,159 Speaker 1: these cases likely to be divided and will the presence 76 00:04:49,240 --> 00:04:55,839 Speaker 1: of Justice Britt Kavanaugh make a difference? Yeah, I think that, Uh, 77 00:04:56,480 --> 00:04:59,839 Speaker 1: you know, I'm not sure that these cases necessarily would 78 00:04:59,839 --> 00:05:03,760 Speaker 1: have gone in favor of uh the gay and lesbian 79 00:05:03,800 --> 00:05:08,360 Speaker 1: and transgender parties even with Justice Kennedy. Justice Kennedy tended 80 00:05:08,400 --> 00:05:11,320 Speaker 1: to be somewhat more conservative when it came to federal 81 00:05:11,400 --> 00:05:16,480 Speaker 1: statutes federal civil rights laws than he was with the broad, 82 00:05:16,600 --> 00:05:21,640 Speaker 1: malleable language of the Constitution. I think the safe bet 83 00:05:21,760 --> 00:05:24,799 Speaker 1: the most likely outcome is that these will be five 84 00:05:24,880 --> 00:05:30,120 Speaker 1: to four with the conservatives the courts, five conservatives joining 85 00:05:30,200 --> 00:05:33,680 Speaker 1: the majority to reverse the lower federal courts. And I 86 00:05:33,680 --> 00:05:36,560 Speaker 1: think they'll feel especially free to do that because they 87 00:05:36,560 --> 00:05:39,279 Speaker 1: can always make the argument, Look, if people want this 88 00:05:39,400 --> 00:05:43,760 Speaker 1: kind of protection for gender identity, for sexual orientation, talk 89 00:05:43,839 --> 00:05:47,680 Speaker 1: to your legislators, get Congress to do it. Um, these 90 00:05:47,760 --> 00:05:51,920 Speaker 1: laws can be changed. These laws are subject to democratic principles. Now, 91 00:05:52,320 --> 00:05:55,200 Speaker 1: it's worth saying that the counter argument to that is 92 00:05:55,240 --> 00:05:58,800 Speaker 1: that substantial majorities of Americans have favored this kind of 93 00:05:58,800 --> 00:06:03,840 Speaker 1: employment protection literally since the nine nineties, but Congress has 94 00:06:03,880 --> 00:06:06,640 Speaker 1: not yet acted, or at least both houses of Congress 95 00:06:06,680 --> 00:06:10,120 Speaker 1: together have not yet acted. So it does present the dilemma, 96 00:06:10,200 --> 00:06:13,000 Speaker 1: what do you do when the court says this isn't 97 00:06:13,000 --> 00:06:16,760 Speaker 1: what this law means? But um, the representative branch of 98 00:06:16,800 --> 00:06:20,920 Speaker 1: government that passes laws is also unresponsive to what majority 99 00:06:20,920 --> 00:06:25,760 Speaker 1: of Americans actually say they want. When Barack Obama was president, 100 00:06:25,839 --> 00:06:30,080 Speaker 1: the Equal Employment Opportunity Commission said sexual orientation discrimination is 101 00:06:30,120 --> 00:06:33,200 Speaker 1: covered by Title seven. Trump administration has done a one 102 00:06:33,240 --> 00:06:37,479 Speaker 1: eighty and shifted the government's position. Does that affect the 103 00:06:37,520 --> 00:06:42,040 Speaker 1: cases at all? Um? Well, if if the Supreme Court 104 00:06:42,720 --> 00:06:47,440 Speaker 1: interprets Title seven as not encompassing sexual orientation or gender identity, 105 00:06:47,480 --> 00:06:49,920 Speaker 1: then the e e o C will have to adjust 106 00:06:49,960 --> 00:06:54,640 Speaker 1: its understanding as well the Supreme courts until Congress does 107 00:06:54,680 --> 00:07:00,320 Speaker 1: something different, the Supreme Court's interpretation of Title seven will control. Um. 108 00:07:00,360 --> 00:07:02,359 Speaker 1: You know, the the e e o C is the 109 00:07:02,440 --> 00:07:06,880 Speaker 1: agency that has expertise on employment discrimination. One hopes that 110 00:07:06,960 --> 00:07:09,720 Speaker 1: the Court would at least consider the e e o 111 00:07:09,840 --> 00:07:12,800 Speaker 1: c s views and consider the e o CS analysis. 112 00:07:12,840 --> 00:07:14,880 Speaker 1: But at the end of the day, the e o 113 00:07:14,960 --> 00:07:19,360 Speaker 1: c's views might be persuasive, but they're certainly not binding 114 00:07:19,440 --> 00:07:22,000 Speaker 1: on the federal courts and certainly not binding on the 115 00:07:22,080 --> 00:07:24,880 Speaker 1: Supreme Court. It won't be the first time that the 116 00:07:24,880 --> 00:07:28,000 Speaker 1: Trump administration has had two different views at the Supreme 117 00:07:28,080 --> 00:07:30,880 Speaker 1: Court or at other courts. That's right. It's interesting that, 118 00:07:31,000 --> 00:07:33,400 Speaker 1: you know, President Trump has been sort of touting on 119 00:07:33,440 --> 00:07:37,520 Speaker 1: Twitter his support, wishing people happy Pride Month and so forth. Yet, 120 00:07:37,920 --> 00:07:42,400 Speaker 1: as you point out, his Justice Department has taken positions 121 00:07:42,440 --> 00:07:46,200 Speaker 1: in these cases that are actually go against the interests 122 00:07:46,200 --> 00:07:49,480 Speaker 1: at gays and lesbians and transgender people, and presumably will 123 00:07:49,520 --> 00:07:51,760 Speaker 1: do so at the Supreme Court as well well. Thanks 124 00:07:51,880 --> 00:07:54,560 Speaker 1: so much, Steve for those insights that Steve Sanders, a 125 00:07:54,600 --> 00:07:59,840 Speaker 1: professor at Indiana University's Mara School of Law. Thanks for 126 00:08:00,040 --> 00:08:03,240 Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and 127 00:08:03,280 --> 00:08:06,480 Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on 128 00:08:06,600 --> 00:08:11,320 Speaker 1: Bloomberg dot com slash podcast. I'm June Brosso. This is 129 00:08:11,360 --> 00:08:12,000 Speaker 1: Bloomberg