Neil Gorsuch
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.