Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. For two decades,
Speaker 1: most of the LGBT movement's highest profile victories have come
Speaker 1: at the Supreme Court, from legalizing gay sex in two
Speaker 1: thousand three to legalizing gay marriage and twenty But as
Speaker 1: they say, that was then, and this is now and
Speaker 1: next year, a more conservative court could deal lgbt Q
Speaker 1: rights a real blow. Joining me is Steve Sanders, a
Speaker 1: professor at Indiana University's Mara School of Law. So, Steve,
Speaker 1: the Court has decided to accept for next term a
Speaker 1: trio of cases involving a child welfare worker, a skydiving instructor,
Speaker 1: and a funeral director. Tell us about the basic issues
Speaker 1: in the cases under title seven. M sure, Jan, Well,
Speaker 1: as you said in the opening, the big cases where
Speaker 1: gays and lesbians have achieved landmark victories of the Supreme
Speaker 1: Court have been under the Constitution, either under principles of
Speaker 1: liberty or under equal protection. All three of these cases
Speaker 1: the Court has accepted for next year involved interpretations of
Speaker 1: the Civil Rights Act of nineteen sixty four, Title seven.
Speaker 1: As you said, in nineteen sixty four, Congress passes a
Speaker 1: law which prohibits discrimination in employment on the basis of
Speaker 1: race and on the basis of sex, in addition to
Speaker 1: a number of other categories. Basically, the question in all
Speaker 1: of these cases is does sex include either sexual orientation
Speaker 1: or gender identity? That is, when a gay or lesbian,
Speaker 1: or transgender person is fired from a job or otherwise
Speaker 1: subjected to an adverse employment action because of their sexual
Speaker 1: orientation or because of their gender identity, is that encompassed
Speaker 1: within the meaning of the words sex in Title seven.
Speaker 1: The argument that it's not essentially stems from the idea
Speaker 1: in nineteen sixty four Congress could not possibly have imagined
Speaker 1: that it was dealing with issues of sexual orientation or
Speaker 1: gender identity. It understood itself to be essentially protecting women
Speaker 1: against discrimination in the workplace. But two federal courts of
Speaker 1: appeals that have come to the conclusion that Title seven
Speaker 1: does cover sexual orientation have said, look, basically, if you
Speaker 1: want to have a relationship with a man, if you
Speaker 1: are a woman, that's fine in the eyes of your employer.
Speaker 1: If you're a man, that's not fine, and you could
Speaker 1: be fired. Well, that's just discrimination on the basis of sex,
Speaker 1: whether you're a man or a woman. And similarly, a
Speaker 1: case from Kentucky involving a funeral director of funeral home
Speaker 1: a person who is transgender said that they were fired
Speaker 1: to meet. The idea that gender identity is intertwined with
Speaker 1: sex does not seem to be a stretch, but we
Speaker 1: will see what the court decides. These cases are not
Speaker 1: about the broad principles of equality and liberty in the Constitution.
Speaker 1: They're really about you know what do words in federal
Speaker 1: statutes passed by Congress actually mean? Linguistics. The Supreme Court
Speaker 1: ruled in that Title seven prohibits gender stereotyping, So how
Speaker 1: is sexual orientation different from that? Well, that that's uh.
Speaker 1: That insight is exactly has been critical to the court
Speaker 1: cases that have said Title seven encompasses gender identity and
Speaker 1: sexual orientation. There's a bit of bootstrapping. As you said,
Speaker 1: there's a a price Waterhouse versus Hopkins case. The Supreme
Speaker 1: Court said that gender stereotypes about gender stereotypes, about what
Speaker 1: it means to be a man or a woman, how
Speaker 1: a woman should present herself to the world, what characteristics
Speaker 1: they have, what they're capable of doing in the workplace,
Speaker 1: that those that kind of discrimination is covered by seven.
Speaker 1: So that's a critical logical step um in the reasoning
Speaker 1: of the courts that have applied Title seven to gaze
Speaker 1: and lesbians and transgender people. I think there are some
Speaker 1: scholars who actually fear that in taking these cases, the
Speaker 1: Supreme Court might step back, might pull back from that
Speaker 1: idea that it announced in the Price Waterhouse case about
Speaker 1: gender stereotyping, or it might or at least might seek
Speaker 1: to put some limits, some boundaries around the idea of
Speaker 1: what types of gender stereotypes implicate Title seven. So, Steve,
Speaker 1: gay rights advocates have been meeting some resistance at the
Speaker 1: Supreme Court even before Justice Kennedy left. How much are
Speaker 1: these cases likely to be divided and will the presence
Speaker 1: of Justice Britt Kavanaugh make a difference? Yeah, I think that, Uh,
Speaker 1: you know, I'm not sure that these cases necessarily would
Speaker 1: have gone in favor of uh the gay and lesbian
Speaker 1: and transgender parties even with Justice Kennedy. Justice Kennedy tended
Speaker 1: to be somewhat more conservative when it came to federal
Speaker 1: statutes federal civil rights laws than he was with the broad,
Speaker 1: malleable language of the Constitution. I think the safe bet
Speaker 1: the most likely outcome is that these will be five
Speaker 1: to four with the conservatives the courts, five conservatives joining
Speaker 1: the majority to reverse the lower federal courts. And I
Speaker 1: think they'll feel especially free to do that because they
Speaker 1: can always make the argument, Look, if people want this
Speaker 1: kind of protection for gender identity, for sexual orientation, talk
Speaker 1: to your legislators, get Congress to do it. Um, these
Speaker 1: laws can be changed. These laws are subject to democratic principles. Now,
Speaker 1: it's worth saying that the counter argument to that is
Speaker 1: that substantial majorities of Americans have favored this kind of
Speaker 1: employment protection literally since the nine nineties, but Congress has
Speaker 1: not yet acted, or at least both houses of Congress
Speaker 1: together have not yet acted. So it does present the dilemma,
Speaker 1: what do you do when the court says this isn't
Speaker 1: what this law means? But um, the representative branch of
Speaker 1: government that passes laws is also unresponsive to what majority
Speaker 1: of Americans actually say they want. When Barack Obama was president,
Speaker 1: the Equal Employment Opportunity Commission said sexual orientation discrimination is
Speaker 1: covered by Title seven. Trump administration has done a one
Speaker 1: eighty and shifted the government's position. Does that affect the
Speaker 1: cases at all? Um? Well, if if the Supreme Court
Speaker 1: interprets Title seven as not encompassing sexual orientation or gender identity,
Speaker 1: then the e e o C will have to adjust
Speaker 1: its understanding as well the Supreme courts until Congress does
Speaker 1: something different, the Supreme Court's interpretation of Title seven will control. Um.
Speaker 1: You know, the the e e o C is the
Speaker 1: agency that has expertise on employment discrimination. One hopes that
Speaker 1: the Court would at least consider the e e o
Speaker 1: c s views and consider the e o CS analysis.
Speaker 1: But at the end of the day, the e o
Speaker 1: c's views might be persuasive, but they're certainly not binding
Speaker 1: on the federal courts and certainly not binding on the
Speaker 1: Supreme Court. It won't be the first time that the
Speaker 1: Trump administration has had two different views at the Supreme
Speaker 1: Court or at other courts. That's right. It's interesting that,
Speaker 1: you know, President Trump has been sort of touting on
Speaker 1: Twitter his support, wishing people happy Pride Month and so forth. Yet,
Speaker 1: as you point out, his Justice Department has taken positions
Speaker 1: in these cases that are actually go against the interests
Speaker 1: at gays and lesbians and transgender people, and presumably will
Speaker 1: do so at the Supreme Court as well well. Thanks
Speaker 1: so much, Steve for those insights that Steve Sanders, a
Speaker 1: professor at Indiana University's Mara School of Law. Thanks for
Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and
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Speaker 1: Bloomberg dot com slash podcast. I'm June Brosso. This is
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