WEBVTT - High Court May Wipe Out Protections for LGBTQ Workers

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. For two decades,

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<v Speaker 1>most of the LGBT movement's highest profile victories have come

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<v Speaker 1>at the Supreme Court, from legalizing gay sex in two

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<v Speaker 1>thousand three to legalizing gay marriage and twenty But as

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<v Speaker 1>they say, that was then, and this is now and

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<v Speaker 1>next year, a more conservative court could deal lgbt Q

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<v Speaker 1>rights a real blow. Joining me is Steve Sanders, a

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<v Speaker 1>professor at Indiana University's Mara School of Law. So, Steve,

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<v Speaker 1>the Court has decided to accept for next term a

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<v Speaker 1>trio of cases involving a child welfare worker, a skydiving instructor,

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<v Speaker 1>and a funeral director. Tell us about the basic issues

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<v Speaker 1>in the cases under title seven. M sure, Jan, Well,

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<v Speaker 1>as you said in the opening, the big cases where

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<v Speaker 1>gays and lesbians have achieved landmark victories of the Supreme

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<v Speaker 1>Court have been under the Constitution, either under principles of

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<v Speaker 1>liberty or under equal protection. All three of these cases

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<v Speaker 1>the Court has accepted for next year involved interpretations of

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<v Speaker 1>the Civil Rights Act of nineteen sixty four, Title seven.

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<v Speaker 1>As you said, in nineteen sixty four, Congress passes a

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<v Speaker 1>law which prohibits discrimination in employment on the basis of

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<v Speaker 1>race and on the basis of sex, in addition to

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<v Speaker 1>a number of other categories. Basically, the question in all

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<v Speaker 1>of these cases is does sex include either sexual orientation

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<v Speaker 1>or gender identity? That is, when a gay or lesbian,

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<v Speaker 1>or transgender person is fired from a job or otherwise

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<v Speaker 1>subjected to an adverse employment action because of their sexual

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<v Speaker 1>orientation or because of their gender identity, is that encompassed

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<v Speaker 1>within the meaning of the words sex in Title seven.

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<v Speaker 1>The argument that it's not essentially stems from the idea

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<v Speaker 1>in nineteen sixty four Congress could not possibly have imagined

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<v Speaker 1>that it was dealing with issues of sexual orientation or

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<v Speaker 1>gender identity. It understood itself to be essentially protecting women

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<v Speaker 1>against discrimination in the workplace. But two federal courts of

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<v Speaker 1>appeals that have come to the conclusion that Title seven

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<v Speaker 1>does cover sexual orientation have said, look, basically, if you

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<v Speaker 1>want to have a relationship with a man, if you

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<v Speaker 1>are a woman, that's fine in the eyes of your employer.

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<v Speaker 1>If you're a man, that's not fine, and you could

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<v Speaker 1>be fired. Well, that's just discrimination on the basis of sex,

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<v Speaker 1>whether you're a man or a woman. And similarly, a

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<v Speaker 1>case from Kentucky involving a funeral director of funeral home

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<v Speaker 1>a person who is transgender said that they were fired

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<v Speaker 1>to meet. The idea that gender identity is intertwined with

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<v Speaker 1>sex does not seem to be a stretch, but we

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<v Speaker 1>will see what the court decides. These cases are not

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<v Speaker 1>about the broad principles of equality and liberty in the Constitution.

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<v Speaker 1>They're really about you know what do words in federal

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<v Speaker 1>statutes passed by Congress actually mean? Linguistics. The Supreme Court

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<v Speaker 1>ruled in that Title seven prohibits gender stereotyping, So how

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<v Speaker 1>is sexual orientation different from that? Well, that that's uh.

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<v Speaker 1>That insight is exactly has been critical to the court

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<v Speaker 1>cases that have said Title seven encompasses gender identity and

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<v Speaker 1>sexual orientation. There's a bit of bootstrapping. As you said,

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<v Speaker 1>there's a a price Waterhouse versus Hopkins case. The Supreme

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<v Speaker 1>Court said that gender stereotypes about gender stereotypes, about what

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<v Speaker 1>it means to be a man or a woman, how

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<v Speaker 1>a woman should present herself to the world, what characteristics

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<v Speaker 1>they have, what they're capable of doing in the workplace,

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<v Speaker 1>that those that kind of discrimination is covered by seven.

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<v Speaker 1>So that's a critical logical step um in the reasoning

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<v Speaker 1>of the courts that have applied Title seven to gaze

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<v Speaker 1>and lesbians and transgender people. I think there are some

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<v Speaker 1>scholars who actually fear that in taking these cases, the

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<v Speaker 1>Supreme Court might step back, might pull back from that

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<v Speaker 1>idea that it announced in the Price Waterhouse case about

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<v Speaker 1>gender stereotyping, or it might or at least might seek

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<v Speaker 1>to put some limits, some boundaries around the idea of

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<v Speaker 1>what types of gender stereotypes implicate Title seven. So, Steve,

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<v Speaker 1>gay rights advocates have been meeting some resistance at the

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<v Speaker 1>Supreme Court even before Justice Kennedy left. How much are

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<v Speaker 1>these cases likely to be divided and will the presence

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<v Speaker 1>of Justice Britt Kavanaugh make a difference? Yeah, I think that, Uh,

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<v Speaker 1>you know, I'm not sure that these cases necessarily would

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<v Speaker 1>have gone in favor of uh the gay and lesbian

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<v Speaker 1>and transgender parties even with Justice Kennedy. Justice Kennedy tended

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<v Speaker 1>to be somewhat more conservative when it came to federal

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<v Speaker 1>statutes federal civil rights laws than he was with the broad,

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<v Speaker 1>malleable language of the Constitution. I think the safe bet

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<v Speaker 1>the most likely outcome is that these will be five

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<v Speaker 1>to four with the conservatives the courts, five conservatives joining

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<v Speaker 1>the majority to reverse the lower federal courts. And I

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<v Speaker 1>think they'll feel especially free to do that because they

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<v Speaker 1>can always make the argument, Look, if people want this

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<v Speaker 1>kind of protection for gender identity, for sexual orientation, talk

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<v Speaker 1>to your legislators, get Congress to do it. Um, these

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<v Speaker 1>laws can be changed. These laws are subject to democratic principles. Now,

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<v Speaker 1>it's worth saying that the counter argument to that is

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<v Speaker 1>that substantial majorities of Americans have favored this kind of

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<v Speaker 1>employment protection literally since the nine nineties, but Congress has

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<v Speaker 1>not yet acted, or at least both houses of Congress

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<v Speaker 1>together have not yet acted. So it does present the dilemma,

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<v Speaker 1>what do you do when the court says this isn't

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<v Speaker 1>what this law means? But um, the representative branch of

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<v Speaker 1>government that passes laws is also unresponsive to what majority

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<v Speaker 1>of Americans actually say they want. When Barack Obama was president,

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<v Speaker 1>the Equal Employment Opportunity Commission said sexual orientation discrimination is

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<v Speaker 1>covered by Title seven. Trump administration has done a one

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<v Speaker 1>eighty and shifted the government's position. Does that affect the

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<v Speaker 1>cases at all? Um? Well, if if the Supreme Court

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<v Speaker 1>interprets Title seven as not encompassing sexual orientation or gender identity,

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<v Speaker 1>then the e e o C will have to adjust

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<v Speaker 1>its understanding as well the Supreme courts until Congress does

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<v Speaker 1>something different, the Supreme Court's interpretation of Title seven will control. Um.

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<v Speaker 1>You know, the the e e o C is the

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<v Speaker 1>agency that has expertise on employment discrimination. One hopes that

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<v Speaker 1>the Court would at least consider the e e o

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<v Speaker 1>c s views and consider the e o CS analysis.

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<v Speaker 1>But at the end of the day, the e o

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<v Speaker 1>c's views might be persuasive, but they're certainly not binding

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<v Speaker 1>on the federal courts and certainly not binding on the

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<v Speaker 1>Supreme Court. It won't be the first time that the

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<v Speaker 1>Trump administration has had two different views at the Supreme

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<v Speaker 1>Court or at other courts. That's right. It's interesting that,

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<v Speaker 1>you know, President Trump has been sort of touting on

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<v Speaker 1>Twitter his support, wishing people happy Pride Month and so forth. Yet,

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<v Speaker 1>as you point out, his Justice Department has taken positions

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<v Speaker 1>in these cases that are actually go against the interests

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<v Speaker 1>at gays and lesbians and transgender people, and presumably will

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<v Speaker 1>do so at the Supreme Court as well well. Thanks

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<v Speaker 1>so much, Steve for those insights that Steve Sanders, a

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<v Speaker 1>professor at Indiana University's Mara School of Law. Thanks for

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<v Speaker 1>listening to the Bloomberg Law Podcast. You can subscribe and

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<v Speaker 1>listen to the show on Apple Podcasts, SoundCloud, and on

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<v Speaker 1>Bloomberg dot com slash podcast. I'm June Brosso. This is

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<v Speaker 1>Bloomberg