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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 Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. The US Supreme

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Speaker 1: Court appeared divided on Tuesday over whether federal antidiscrimination law

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Speaker 1: protects gay and transgender employees, as the gentice has heard

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Speaker 1: arguments in a clash that will define the workplace rights

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Speaker 1: of millions of people. Joining me as constitutional law experts,

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Speaker 1: Stephen Vladdock, a professor at the University of Texas Law School,

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Speaker 1: Steve these were three separate cases, but with one legal

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Speaker 1: issue under Title seven. All three cases revolve around Title

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Speaker 1: seven of the Civil Rights Act of nineteen sixty four,

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Speaker 1: really one of the most important pieces of legislation commerce

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Speaker 1: has ever enacted, that is, I think most similiar to

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Speaker 1: us as the central employment discrimination law in the country.

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Speaker 1: Entitle seven basically prohibits most employers, basically every business with

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Speaker 1: more than you know, a small number of employees, from

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Speaker 1: discriminating against their employees on the basis of, among other things, sex.

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Speaker 1: We've understood for as long as Title seven has been

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Speaker 1: on the books that sex means you can't fire someone

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Speaker 1: because they're a woman, or even because they're a man.

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Speaker 1: The question in all three of these cases is does

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Speaker 1: that also mean you can't fire someone because they are

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Speaker 1: of a particular sexual orientation? Does that mean you can't

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Speaker 1: fire someone because they identify as a particular transgender status,

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Speaker 1: that they have a gender identity that might differ from

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Speaker 1: what you perceive their biological sex to be. And so

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Speaker 1: basically it's all about the meaning of sex. I understood

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Speaker 1: that the plaintiffs part of their argument was appealing to

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Speaker 1: the text of the statute in order to get some

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Speaker 1: of the textualists on the court on their side. Definitely right.

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Speaker 1: So I think one of the things that's really interesting

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Speaker 1: about this case is that in a world in which

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Speaker 1: we were all just pure formal sextualists, the law would

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Speaker 1: actually seem to be pretty favorably on the side of

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Speaker 1: the employees of the challengers here, of those who are

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Speaker 1: arguing the Title seven should extend a discrimination on the

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Speaker 1: basis of sexual orientation or transgender status. I think the

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Speaker 1: problem that arose and that we saw from the oral

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Speaker 1: argument on Tuesday morning, is that the justices, I think

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Speaker 1: are not necessarily quite the fervent committed textualists that they

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Speaker 1: always put themselves out to be. Let's explain it a

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Speaker 1: little bit, because so Justice Scalia was known as a textualist.

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Speaker 1: He was the sort of almost a leader, the father

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Speaker 1: of the movement, and Justice cour Sauch is supposed to

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Speaker 1: be one of those who follow Scalia. Yeah, I mean,

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Speaker 1: I think the idea behind textualism and the animated principle

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Speaker 1: is that when the words of a statute are clear,

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Speaker 1: there's just nothing appropriate in looking behind those words. Basically

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Speaker 1: that the words should be the first place the courts look,

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Speaker 1: and if the words are clear, to be the last

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Speaker 1: place they look. And you know, I think what the

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Speaker 1: plaintifts are arguing in these cases is that if you

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Speaker 1: look at it through that lens, it's pretty obvious that

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Speaker 1: discriminated on the basis of sex um means discriminated on

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Speaker 1: the basis of anything have him to do with your

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Speaker 1: sexual identity, with your biological sex, your sexual orientation, your

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Speaker 1: transgender status, and so the that's why they think that

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Speaker 1: this case could and should be decided slewly on the

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Speaker 1: basis of text at least based on the question, and

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Speaker 1: I think or arguments on Tuesday. You know, some of

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Speaker 1: the more conservative justices seem to have real concerns about that.

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Speaker 1: And I thinks the larger point their june is that,

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Speaker 1: you know, for all the talk about textualism, I think

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Speaker 1: justices tend to be um, for lack of a better word,

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Speaker 1: not entirely consistent about when they are faithful to that

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Speaker 1: principle above everything else. And one other considerations you know,

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Speaker 1: may and do factor into play. Justice COURSEU asked whether

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Speaker 1: the Court shouldn't leave matters to Congress, saying the Court's

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Speaker 1: decision could lead to massive social upheaval, So he's really

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Speaker 1: looking way beyond the text. Yeah, I mean, I think,

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Speaker 1: you know, the notion that the Court should leave the

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Speaker 1: decision of Congress, I think ignores the very possible answer

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Speaker 1: that Congress has already resolved this issue. Um. You know,

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Speaker 1: there's no question that when it comes to statutory interpretation, UM,

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Speaker 1: the Court's job is to act basically as the faithful

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Speaker 1: agent of the legislature. And the question here is whether Congress,

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Speaker 1: when it wrote that language into the statute, you know,

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Speaker 1: would have had a hard time believing that as our

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Speaker 1: understandings of sex based discrimination evolved that those understandings would

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Speaker 1: also be reflected um in what Title seven prohibits. You know,

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Speaker 1: I think the notion that we should pump this back

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Speaker 1: to Congress um may be attractive to the justices as

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Speaker 1: a dodge, but I think it's inconsistent with the notion

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Speaker 1: that we can you know, resolve these cases many times

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Speaker 1: by just looking at what the words say. Now, what

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Speaker 1: has the trend been in the courts of late in

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Speaker 1: the lower courts as far as the interpretation of the

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Speaker 1: word six in the so yeah, I mean, part of

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Speaker 1: how these cases got to the Supreme Court is the

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Speaker 1: lower courts have actually divided, at least in the context

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Speaker 1: of sexual orientation UM. There actually hasn't been nearly as

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Speaker 1: much percolation on the question of transgender status. I mean,

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Speaker 1: I think, you know, courts are relatively new to the

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Speaker 1: problem of how to map onto you know, gender identity

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Speaker 1: UM and non binary gender status UM sort of relatively

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Speaker 1: classical constructions of of sex UM. But you know, the

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Speaker 1: lower courts I think have been more um skeptical. I

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Speaker 1: think of of extended Title seven to the transgenderal context.

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Speaker 1: I think part of what's interesting about the Supreme Court

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Speaker 1: here is there was no question that the Supreme Court

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Speaker 1: really was going to have to step in, at least

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Speaker 1: on the sexual orientation cases, because the lower courts had divided.

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Speaker 1: The Court really reached out to take up the transgender

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Speaker 1: status case. Um. There really had not been the full

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Speaker 1: kind of development in the lower courts that we usually

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Speaker 1: see before the Supreme Court weighs in. And you know,

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Speaker 1: I think some speculation there is that maybe the Court

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Speaker 1: thought it could split the difference um and hold the

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Speaker 1: Title seven extends to one of those class of cases

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Speaker 1: but not the other. You know, I did not see

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Speaker 1: a lot in the argument transcript from Tuesday suggesting that

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Speaker 1: the Justices are looking at the cases that way. They

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Speaker 1: may end up there, but at least, you know, based

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Speaker 1: on the arguments, they seem to be, you know, viewing

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Speaker 1: all three of these cases as rising and falling on

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Speaker 1: the same arguments. Is this case a test of whether

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Speaker 1: Justice Kennedy's legacy in terms of gay rights will survive

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Speaker 1: a more conservative court. I think this case certainly is

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Speaker 1: a very important referendum on how the Supreme Court looks

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Speaker 1: after Justice Kennedy. You know, I think folks um. Probably

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Speaker 1: will remember that one of Justice Kennedy's real I think

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Speaker 1: visible contributions UM was writing for a majority, the majority

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Speaker 1: of the Court and just about all of the Court's

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Speaker 1: major decisions in the area of gay rights. I mean,

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Speaker 1: from Roman versus Evans to Lawrence versus Texas, to Windsor

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Speaker 1: which struck down Doma to a burgher Fell in gay marriage.

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Speaker 1: Those are all opinions by Justice Kennedy. These cases are

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Speaker 1: a little different June, because these are statutory cases, UM,

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Speaker 1: But you know, the implications I think are at least

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Speaker 1: as profound um. And so yeah, I mean, I do

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Speaker 1: think that if the Court ends up not um treating

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Speaker 1: sexual orientation UM and or transgender status as sex based

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Speaker 1: discrimination for persons the title seven, I think that really

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Speaker 1: will be a sign of you know, a sign of

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Speaker 1: the times of a post Kennedy court. On the flip side,

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Speaker 1: I mean, if the Court ends up agreeing with the

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Speaker 1: planeffs here, UM, I think that I'll be as signed of,

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Speaker 1: perhaps of how much of the Court itself has moved,

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Speaker 1: maybe because of Justice Kennedy's contributions. Can you tell it

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Speaker 1: all or venture a guess from reading the transcript as

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Speaker 1: to which way they'll come down. You know. I sometimes

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Speaker 1: you really can go through a Supreme Court transcript and

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Speaker 1: have a pretty good feel for how the courts can rule.

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Speaker 1: I don't really see it here. I mean, I think

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Speaker 1: it's pretty clear that it's going to be sharply divided. UM.

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Speaker 1: I think it's a pretty safe bet that, you know,

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Speaker 1: the four progressive justices are likely going to side with

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Speaker 1: the planets at least in the sexual orientation case. UM.

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Speaker 1: You know, maybe they'll try to split the difference with

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Speaker 1: some of their conservative colleagues. I think it's almost certain that,

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Speaker 1: you know, at least three of the conservatives um will

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Speaker 1: side with the employers in both cases. And I think,

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Speaker 1: you know, the real question becomes, what about you know,

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Speaker 1: the the justices who really are increasingly in the median um,

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Speaker 1: if not in the middle, And that's you know, Justice Gorstch,

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Speaker 1: Chief Justice Roberts, maybe Justice Kavanaugh, and I just you know,

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Speaker 1: I don't know that we can have any confidence from

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Speaker 1: the transcript how really any of those three are going

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Speaker 1: to vote in these cases. Finally, the Trump administration was

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Speaker 1: fighting on both sides of the issue in this case.

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Speaker 1: The e o C on one side, and the Justice

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Speaker 1: Department on the other So yeah, I mean the you know,

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Speaker 1: this happens sometimes where you have you know, government units

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Speaker 1: that have independently degating authority that have their own position,

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Speaker 1: And the e o C historically has actually been a

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Speaker 1: leader in this space, whereas the Justice Department, I think,

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Speaker 1: was you know, quite aggressively pushing on behalf of the

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Speaker 1: employers in these cases. You know, I think that's not

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Speaker 1: unheard of, although it's always a little awkward when you

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Speaker 1: see it. Um you know, where you see the sort

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Speaker 1: of the agency tapped with actually enforced them our employment

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Speaker 1: laws coming out one way, and the Justice Department is saying,

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Speaker 1: you know, no, you shouldn't. I don't know that that's

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Speaker 1: going to tip the scales, you know in these cases.

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Speaker 1: I think the justices don't need the help. Um that really,

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Speaker 1: I think what this is going to come down to

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Speaker 1: is as between really what should be a relatively straightforward

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Speaker 1: case under you know, modern textualism, and the concerns that

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Speaker 1: you know, Justice course has alluded to it. The argument

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Speaker 1: which way the justices are gonna go? Um, anyone who

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Speaker 1: knows for sure? I think because is either you know,

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Speaker 1: one of those justices or is selling something. Thanks Steve

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Speaker 1: that's Stephen Vladdock, Professor at the University of Czexis School

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Speaker 1: of Law. Thanks for listening to the Bloomberg Law Podcast.

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

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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloo bird ter.