A Beginner’s Guide to the Endgame: What You Need to Know about the LGBTQ Supreme Court Cases
The week of October 8 is a complicated one for a lot of queer people. Between Sunday and Saturday, we honor the days Matthew Shepard struggled for his life. Friday is National Coming Out Day. Wednesday is the Day of Atonement. And, of course, Tuesday is one of the most significant days for LGBTQ civil rights in the history of the Supreme Court.
When I first started out in the legal profession, before I’d even graduated from law school, I clerked in the policy office of National Center for Lesbian Rights (which back then was a fancy way of saying three of us squished into a few square feet at the National LGBTQ Task Force building in Washington, DC). The NCLR legal team is the very definition of unsung heroes in this movement. Somewhere in the historic work that I got to contribute my small intern pieces to, there was this one still relatively obscure area of caselaw I became obsessed with.
Whenever I wasn’t working on another project, I was gathering old transcripts of floor debates and unpublished decisions, filling a 6-inch accordion folder that stopped fitting in my backpack after the first 3 months. I wrote my second-year law journal article on it. I wrote a memo about it to the EEOC. The Legal Research & Writing faculty asked me to help write the following year’s primary assignment on it. Even after I was supposed to, I couldn’t let it go. Among the many things I have to thank the NCLR legal team for (the right to marry, the right to healthcare, the right to education — you know, small things), not firing me for insubordination is at least in the top three. I was like a dog with a bone. Had they not brought me on as a staff attorney to work on conversion therapy, and had we not started gaining momentum on laws prohibiting the practice a few years later, I may have held onto that bone forever.
The argument had been around for decades, but it was for the most part relegated to minor law review articles easily dismissed by the majority of serious (read: white, straight, and cisgender) scholars. Every so often it would see a small moment of traction, but mostly in the lower courts, and mostly in opinions they coincidentally decided to leave unpublished. By 2010 a few higher courts were just starting to entertain it, with not great results. But here’s the thing. Even the majority of opinions that soundly rejected the argument could really only do so by admitting that the logic was correct, but the conclusion couldn’t possibly be.
On October 8, that argument went to the Supreme Court.
I’ve spent more than a decade of my life in LGBTQ advocacy, first as an organizer in California during the days of Proposition 8, later as a movement attorney, and occasionally as the leader of nonprofits advocating for trans rights and family equality. October 8 should have be an exciting day for me. It was my baby lawyer heart’s greatest hope. The consolidated cases Bostock v. Clayton County, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, and Altitude Express v. Zarda represent the culmination of so much of what we’ve been fighting for for years. This argument has the potential to transcend single civil rights issues and create the rare kind of legal precedent that reaches many — not just those facing discrimination in employment but in virtually every area of life. It will set the stage for every decision that comes afterward.
This is the most significant case for LGBTQ civil rights in my lifetime.
But as we wait for a decision in an area of law I love with my whole heart, excited isn’t the word I’d use. I don’t know a single person who’s excited right now. What should have been a red-letter day for the right side of history has been twisted by recent changes to the Court — now stacked with conservative justices — into a moment that will threaten the rights of not only my beautiful community, but a majority of Americans.
Our argument is simple: Discrimination against LGBTQ people is discrimination on the basis of sex.
In the months between October 8 and the day the Court issues a decision, opponents of equality — including our very own Department of Justice — told the highest court in the land with dramatic vehemence that this argument is convoluted, that you have to bend over backward in order to understand it, that it’s just a cynical attempt by radical queers to “bootstrap” protections into the law where no lawmaker intended them to be. It’s an insidious talking point. It encourages people to not bother even trying to understand. It doesn’t just overblow the complexity of what is actually pretty straightforward logic; it underestimates the attention of the people watching.
I hope you’re watching.
For those who are, who may not have ever had the peculiar experience of being a young lawyer who couldn’t let go of a bone, I thought it might be helpful to break it down into a few digestible parts. So. Here goes.
In order to follow 90% of what you’ll hear in the coming months, you only really need to understand 3 things: a law you’ve probably heard referred to in shorthand as “Title VII,” a 1989 case called Price Waterhouse Cooper v. Hopkins, and A Little Bit of Strange History. Spoiler alert: that last one includes a field trip.
1. Title VII
“Title VII” refers to Title VII of the Civil Rights Act of 1964. For context, this was the then-bill that Dr. Martin Luther King Jr. was talking about in his “I Have a Dream” speech and Malcolm X was talking about in his “The Ballot or the Bullet” speech (it’s worth noting that even in 1963 neither believed it would be sufficient, and King was assassinated fighting for expansions to the law included in the Civil Rights Act of 1968).
The Civil Rights Act of 1964 as originally written prohibits discrimination based on race, color, religion, or natural origin in voting, public accommodations, education, federally-assisted programs, and employment. Title VII is the section that covers that last part — based on the factors listed above as well as sex. Though judicial interpretation has significantly watered down its protections, it remains among the most powerful tools attorneys have. Courts deciding cases on just about every other civil rights law there is look to this one for guidance, so its impact goes well beyond the individual subject matters it covers.
2. A Little Bit of Strange History
Jumping ahead for a moment, you may notice that Title VII is the only part of the law that prohibits discrimination “because of … sex.” There’s a really interesting debate about why that is.
Conventional wisdom is that a Virginia segregationist named Howard Smith introduced the word “sex” at the last minute as a poison pill amendment — one designed to make people vote no whether they were supporters or not. When he did, it’s reported that members of the House actually laughed. But, so the story goes, he gambled wrong. Distracted by the much bigger fights going on about the rest of the bill, Congress gave the subject almost no debate on the floor and it passed out of the House as written. It then moved onto the Senate where — even after segregationists led one of the longest filibusters in U.S. history to fight those bigger fights — it passed again with almost no mention of sex. President Lyndon B. Johnson signed it into law the very same day, also without mention. For a rare moment in history, sex just sort of accidentally slid under the radar.
Until a few months ago, I believed that was the whole story too.
This spring, I had the good fortune to spend a few weeks digging into the archives left by civil rights activist Pauli Murray housed within Harvard University’s Radcliffe Institute. I was looking for something completely unrelated, when I stumbled across dozens of letters written during the Title VII Senate debates to Black women’s organizations, members of Congress, and even the White House, pushing them to be louder about the inclusion of sex discrimination. Nearly everyone replied that emerging consensus in the caucus was it was too big a risk to the overall legislation. But in those letters, Murray talked about the conversations among women’s rights advocates happening behind the scenes.
The rest of the story (now documented by other scholars much less likely to appear on NPR) is that there was actually considerable organizing and strategizing going on, led in large part by women and gender nonconforming people of color. It was just quiet. And, not unsurprisingly, it has remained quiet. The history of sex discrimination we are told stars (oblivious) white men.
I’d bet my law degree that not a single Supreme Court justice asking whether legislators in 1964 could have known Title VII would include transgender people knows the name Pauli Murray.
But the fact is that the inclusion of sex in Title VII was no accident — thanks in part to a Black trans ancestor who I can only hope would be proud of us this week.
Anyway. Back to the law. There’s just one more, I promise.
3. Price Waterhouse v. Hopkins
Price Waterhouse was a 1989 Supreme Court case interpreting the sex provision of Title VII. An employee at the famous accounting firm had been denied partnership because she didn’t adhere to their standards of femininity. Her supervisor told her that if she wanted the promotion she needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Her evaluation literally included a line that what she needed was a “course in charm school.” When she took them to court, lawyers for Price Waterhouse argued that Title VII’s prohibition on sex discrimination didn’t include “sex stereotypes,” and that the fact that they had hired a woman at all proved they didn’t discriminate on the basis of sex. It was all deeply, deeply gross.
Let’s step back for a minute. The thing you need to know about statutory interpretation is that when something in the text is unclear, courts look for guidance to the legislative history (marked-up versions of the bill, transcripts of floor debates, signing statements, etc.). But when Ann Hopkins showed up in federal court alleging sex discrimination at work, there was almost no record for them to look to. That’s a key part of why Title VII jurisprudence is a little fuzzy even to this day. As far as the courts are concerned, the legislative history doesn’t exist.
Because the Supreme Court didn’t have that to fall back on in 1989, it really wrestled with what lawmakers in 1964 intended to prohibit. It ended up sticking to a pretty textualist interpretation — relying on the plain meaning of the words in the statute rather than what the drafters’ motives might have been. And, according to a majority of the justices, the plain meaning of “sex” included masculinity and femininity. Ann Hopkins got the last word, and the Supreme Court held for the first time in history that discrimination on the basis of sex includes discrimination on the basis of failure to conform to sex stereotypes.
Finally, the Damn Argument
The primary elements of the argument before the Supreme Court right now all live at the intersection of those three things: Title VII, Price Waterhouse, and A Little Bit of Strange History. Over the years, lawyers have made a few key logical deductions from that intersection — starting, in rare form, with the rights of trans people. Because we’re still fighting about what legislators did or didn’t intend to cover in 1964, (conservative originalists like Justice Roberts will keep waxing poetic about legislative intent until their dying breath), it’s safest to stick to textualist readings of Title VII like the one the Court used in Price Waterhouse. Civil rights attorneys have use the plain meaning of those words to make a few versions of this argument which, taken individually or together, all lead to the same conclusion: Title VII prohibits discrimination based on sexual orientation and gender identity.
- Sex Stereotypes (Gender Identity & Sexual Orientation) — A transgender person is discriminated against because they do not act or dress in a way that conforms to the stereotypes associated with the sex they were assigned at birth. By extension, an LGB person is discriminated against because they are not attracted to the gender that conforms to the stereotypes associated with the sex they were assigned at birth. Living as the sex assigned at birth and being attracted to people assigned a different sex at birth are stereotypes based on sex. An employee can’t be fired because they are LGBTQ any more than they can be fired because they do or don’t take responsibility for the cooking and cleaning at home. (This is the argument the justices focused most on during oral arguments.)
- Associational Discrimination (Sexual Orientation) — LGB people are discriminated against because of the sex of the people they associate with. If Anthony and Beatrice are similarly situated in every way, including the fact that they are both dating men, and their employer only fires Anthony, we have to presume that the termination wouldn’t have happened but for the sex of the person Anthony is dating. An employee can’t be fired because they are partnered to someone of the same sex any more than they can be fired because they are partnered to someone of a different race (This caselaw is unsurprisingly bound up with the aftermath of anti-miscegenation laws).
- Transition (Gender Identity) — A transgender person is discriminated against because they have transitioned from one protected category to another. The most obvious analog here is religion. If an employer said they would hire Jews or Christians but not “converts,” that would obviously be discrimination covered by Title VII. An employee can’t be fired because they have transitioned from one gender to another any more than they can be fired because they have transitioned from one religion to another. (This one isn’t really used much in the current case, but it is a super interesting part of the judisprudence.)
- Protected Class (Gender Identity & Sexual Orientation) — An LGBTQ person is discriminated against because of sex. LGBTQ people are covered by Title VII and the Constitution. Period.
The fact that these pretty indisputable arguments have gained enough momentum to get to the Supreme Court shouldn’t have to be historic, but it is. This should be a turning point in civil rights law. So many people have fought so hard for this moment.
Instead, LGBTQ people are heading into these with the kind of excitement fueled by anxiety. The Supreme Court has has seen massive changes in the last few years, and it’s possible that an arguably illegitimate bench could do some truly unconscionable things. This case could go well beyond the harm it’s going to do to us. The perceived lack of legislative history could lead it to double down on the narrative that Congress never meant to pass this version of Title VII at all. It could overturn Price Waterhouse. It could overturn sex stereotyping jurisprudence entirely. It could take us back to an era when employers could force women to wear skirts. People much closer to the case than me have written some excellent pieces (below) about how high the stakes are. Suffice it to say, they’re high.
And if I’m honest, I’m not optimistic. The decision will likely hinge on Justice Gorsuch, who doesn’t exactly have a great track record on civil rights and is a wild card at best. I would love to be wrong. But, whether I am or not, the Supreme Court doesn’t actually have the last word on this. Its job in this case is to interpret legislation, which means there’s a legislative remedy.
Regardless of what 9 justices decide this term, 236 representatives passed the Equality Act last May. That bill would explicitly amend the Civil Rights Act of 1964 to include sexual orientation and gender identity — not only in Title VII but in the entire law. We wouldn’t have to rely on justices who can’t even seem to call trans women women, and we wouldn’t have to watch our rights be debated by a bench made up entirely of straight, cisgender people. But the bill faces significant hurdles. It still has to pass through a Republican-controlled Senate and be signed by a president who threatens our lives in every other tweet. Make no mistake: No matter what happens, the same people who are fighting against our rights today will be fighting against our rights tomorrow.
But I also refuse to let this moment be entirely about those who have been working to strip us of our humanity for years. Millennia, even. Even if they win. Even if they say horrific things about us. Even if our own employers, our own government, our own justices join in. This isn’t about them.
If you’re watching this unfold, this is about you.
I really hope you’re watching.
Price Waterhouse v. Hopkins at Thirty, Sasha Buchert
Transcripts of oral arguments are available here: https://www.supremecourt.gov/oral_arguments/argument_transcript/2019