Neil Gorsuch Is Supreme Court's Wild Card in LGBTQ Rights Cases

Today at the Supreme Court, conservative justices voiced skepticism that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, could extend to banning discrimination based on sexual orientation and gender identity, although one, Neil Gorsuch, seemed to consider a different conclusion.

Nonetheless, some LGBTQ advocates were cautiously optimistic after the day's proceedings. The court heard the cases of two men, Donald Zarda and Gerald Bostock, who say they were fired for being gay, although their employers gave other reasons, and a woman, Aimee Stephens, fired for being transgender -- which her employer pretty much admitted was the case. At issue is whether their firings constituted illegal discrimination under Title VII, an issue on which lower federal courts have split.

Gorsuch, the first justice appointed to the high court by Donald Trump and likely the deciding vote in these cases, "asked questions of both sides indicating potential sympathy for the workers," Reuters reports. He noted that if someone is fired because of their sexual orientation, their sex could be a "contributing cause." But later, in the transgender case, he said that Congress rather than the courts would be the proper venue for a decision on whether to ban anti-LGBTQ discrimination, as a court ruling could result in "massive social upheaval."

The Equality Act has been introduced in Congress to do just that. It has been passed by the Democratic-controlled House of Representatives, but it has little chance of advancing in the Republican-majority Senate.

In the Stephens case, her attorney, American Civil Liberties Union legal director David D. Cole, said she was clearly fired because of sex -- "because she had a male sex assigned at birth," according to The Washington Post. Gorsuch responded, "I'm with you on the text," but he did stress that the matter would be more properly addressed in Congress. The case, though, is "really close," he said.

Another conservative justice, Samuel Alito, voiced a similar reservation to Gorsuch's, saying the court would be criticized for "acting exactly like a legislature" if it ruled for a broad interpretation of Title VII, The New York Times reports. "You're trying to change the meaning of what Congress understood sex to be," he told Pamela Karlan, the attorney arguing for Bostock and Zarda.

Gorsuch also objected to some of the reasoning put forth by Karlan. "When you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate this joyous event," it's sex discrimination, she said, according to the Times. The justices were silent until Karlan pressed them on whether they had further questions, and Gorsuch said she was offering "absurd examples." But he did allow that sex discrimination was a component of sexual orientation discrimination.

Two other conservatives, Clarence Thomas and the newest justice, Brett Kavanaugh, asked few questions during the hearing. Thomas had been absent from court proceedings Monday due to illness but was back today. His pattern is to be silent during oral arguments. The fifth conservative, Chief Justice John Roberts, asked about employers with religious objections to hiring LGBTQ people, and Karlan said there are exemptions in place for faith-based employers.

The liberal justices -- Sonia Sotomayor, Elena Kagan, Stephen Breyer, and Ruth Bader Ginsburg -- were notably more sympathetic. Sotomayor at one point asked U.S. Solicitor General Noel Francisco, arguing against the employees on behalf of the Trump administration, at "what point" it would be acceptable for a court to rule in favor of discrimination, according to CNN. She noted that LGBTQ workers often face harassment, firing, and physical violence. Francisco responded that it was up to Congress, not the courts, to change the law.

The day marked the court's first hearing on LGBTQ rights since the retirement of Justice Anthony Kennedy, the "swing justice" -- it was hard to predict whether he'd side with the liberals or the conservatives -- who wrote all of the court's pro-LGBTQ decisions to date. Kavanaugh replaced Kennedy.

There were protests and arrests outside the court building today. More than 100 people were arrested, the Washington Blade reports.

Many LGBTQ rights groups were present for the day's hearing. Lambda Legal, which handles court cases involving discrimination but was not involved in today's, voiced measured optimism after observing the proceedings.

"It was quite a day. After hearing the Supreme Court justices' questions today, we are hopeful and there are many reasons to be optimistic," Gregory Nevins, senior counsel and Employment Fairness Project director for Lambda Legal, said in a press release. "If the court simply applies the law as written, LGBTQ workers win. The text of Title VII is as clear as day: if an employer refuses to hire, dismisses, or mistreats an employee 'because of' that employee's sex, they are in violation of the law. In these three cases, and in so many others, LGBTQ employees have been punished simply for not conforming to the employers' sex-based stereotypes about how they should behave or who they should be attracted to. The court has the opportunity to set the record straight and it's time."

"A lot is at stake here," he continued. "The court effectively could take away rights from LGBTQ workers that have been established by multiple federal courts, confirmed by the [Equal Employment Opportunity Commission], and accepted by the overwhelming majority of American people. We need the court to clarify once and for all that discrimination against LGBTQ workers is unlawful sex discrimination so that people everywhere can bring their whole selves to work and not be forced to hide. If they just follow the text of the law that should be fairly easy."

Aaron Belkin, a longtime activist against discrimination in the military who is now director of Take Back the Court, was distressed by some aspects of the hearings. "However the court ultimately rules, today was a sad day for democracy and civil rights," he said in a written statement. "The question of whether Title VII protects LGBT Americans from discrimination is settled law. By taking up these cases now, the court is wrongly signaling that this is somehow a close call or questionable. This type of assault on long-settled legal precedent is exactly what [Senate Majority Leader] Mitch McConnell had in mind when he manipulated the size of the court in 2016/17 in a partisan power grab, and it should concern all Americans, LGBT or otherwise. Until we fundamentally restructure the court to fix what McConnell has broken, these assaults on democracy and civil rights will only intensify." McConnell notably refused to let the Senate consider a Supreme Court nominee from President Barack Obama after Justice Antonin Scalia died in 2016, leaving the vacancy for Trump to fill with Gorsuch.

The ACLU's Cole issued a statement on how he would like to see the court rule, saying, "These cases will have a profound effect on the lives of millions of people. The LGBTQ community has won hard-fought protections in courts before, and we are hoping the justices will not turn back the clock on equality and justice. No one should be fired because of who they are."

Stephens, the first transgender person to have a case heard by the Supreme Court, released a statement through the ACLU as well. "I am thrilled to be at the highest court in the land today to remind the justices with my presence that women like me exist, and that trans people have every right to the same protections as everyone else," she said. "Firing me because I'm transgender was discrimination, plain and simple, and I hope the court rules that no one has to endure the harm and suffering my former employer forced me to experience."

Added Melissa Zarda, sister of the late Donald Zarda (he died in 2014, while his case was in progress): "My brother Don was my rock, my everything. I stood in the Supreme Court today to honor his memory and continue the fight for fairness that he would want me to continue. I believe that in this country, you should not be fired for being gay, and I hope that the court recognizes that what happened to Don was wrong and should never happen again."

A ruling is expected next spring or summer.

This story is developing. Check back for updates.