How Will Each Supreme Court Justice Vote in These Historic LGBTQ+ Rights Cases?

Appointed by Trump in 2018, Justice Neil Gorsuch had already established himself as a conservative, if not libertarian, judge focussed on preserving individual freedoms — religious or otherwise — during his tenure on the 10th Circuit Court of Appeals. Gorsuch has often authored opinions protecting citizen and corporation's right to express and maintain their religious views in all aspects of their business. This includes arguing it was Hobby Lobby's religious right to refuse to provide coverage for contraception in their employee healthcare policy. In fact, Gorsuch even argued more individual business owners should exercise a similar philosophy of aligning religious beliefs with their business policies. This focus on protecting religious freedom could mean Gorsuch would support companies in choosing not to employ LGBTQ+ employees if they cited religious beliefs as a reason.

During oral arguments, Gorsuch seemed to see the arguments from both sides. At one point, he told the plaintiff's lawyer in the Aimee Stephens case that he was "with him on the textual evidence" that the use of sex in Title XII could be applied to include protection against discrimination based on gender. But he also wondered whether such an inclusion "could create social upheaval" in regards to people who appose LGBTQ+ lifestyles for religious reasons. When Aimee Stephens's lawyer David Cole responded that recognising discrimination against trans folks as sex discrimination was simply continuing years of precedent set by federal appeal courts, Gorsuch simply repeated his question as if Mr. Cole had not addressed it.

At first glance, Gorsuch's dedication to Title XII's original intent and literal meaning, otherwise known as textualism, may seem like it was swaying him to the side of the plaintiff. Still, Vogler explained that textualism will likely not be to the benefit of the plaintiffs. "It really depends on whether they [The Supreme Court] buy the arguments that the plaintiff's lawyers put forward, which is that this is about discrimination because of the sex they were assigned in the case of the trans case, or because of who they were in a relationship with in the case of the [Bostock and Zarda] case." Vogler anticipates that if textualism is a part of Gorsuch's decision, it will most likely be used to argue Title XII's use of sex was not intended to mean gender identity or sexual orientation when it was written, and the court isn't going to expand it to include these identities now.

Many experts believe both of these landmark cases may be decided by 5-4 votes — but in which direction is unclear. Based on comments alone, we can assume that Justices Breyer, Ginsburg, Kagan, and Sotomayor will all most likely rule in favour of the plaintiffs and interpret Title XII of the Civil Right's Act to include protections for LGBTQ+ folks under its definition of discrimination based on sex. On the other side, Justices Roberts, Alito, and Thomas will most likely rule in favour of the employers. What about Justices Gorsuch and Kavanaugh? As both have little experience with cases dealing with LGBTQ+ issues, most analysis has focussed on their history of supporting religious freedoms and staunch originalist approach in the case of Gorsuch, to suggest they may side with the employers, but this is not for certain. Both justices were appointed by Trump, whose administration has made its position on this matter clear.

It's important not to forget the human stories rulings such as these will effect. Just consider the picture above, taken in the room when the 1964 Civil Rights Act was signed. Looking at the photo, it's obvious why there was no mention of protections of LGBTQ+ identities; the room is full of white cis-gendered straight-(presenting) men! Similarly, many of the Justices showed a distinct lack of understanding, if not empathy, when analysing the current cases before them. Kagan at one point referred to "transgendered" people, Gorsuch worried providing basic protections to LGBTQ+ folk would not be worth the "social upheaval" it may cause, and for some reason, each justice kept changing the topic to what bathrooms trans folk should be allowed to use. In their arguments, the current justices consistently describe trans folk as if they are are walking contradictions that stand out wherever they are. In reality, invisibility and passing is a way of survival for most "transgendered" people and will become even more important if the justices decide Title XII does not protect LGBTQ+ identifying individuals in the workplace.

Both of these cases, if decided against the employees, will end up vindicating employers with transphobic and or homophobic views while denying LGBTQ+ folks basic human rights. If you would like to make your voice heard, this link provides detailed instructions on how you can write a letter to a specific Supreme Court Justice. If you have the time, I urge you to take action. You can also support through donation to organisations advocating for the rights and equal treatment of LGBTQ+ folk. This link will take you to an article listing 15 trans rights organisations you can donate to. You can also donate to the ACLU here, who represented both Aimee Stephens and Donald Zadar at the Supreme Court.

If you are a person who identifies as LGBTQ+ and are in need of information regarding your legal rights, this link will take you to the National Centre for Transgender Equalities employment legal resource page.