SCOTUS Decision on Gay and Transgender Worker Protection


Thursday, June 18, 2020

Professor Buzz Scherr talks the US Supreme Court Decision that expands protections for gay and transgender workers, which had a surprising 6-3 ruling that split the conservative justices. Produced and Hosted by A. J. Kierstead

SCOTUSBlog coverage of Bostock v. Clayton County, Georgia: https://www.scotusblog.com/case-files/cases/bostock-v-clayton-county-georgia/ 

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Legal topics include civil rights, US Supreme Court, 1964 Civil Rights Act, transgender rights, gay rights, sex discrimination 

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Speaker 1:

Professor Buzz Scherr discusses the US Supreme Court decision expanding protections for transgender and gay workers. This is The Legal Impact, presented by the University of New Hampshire Franklin Pierce School of Law, now accepting applications for JD graduate programs and online professional certificates. Learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the faculty and your host and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire.

A. J. Kierstead (Host):

So Buzz, what were the cases that were decided on this week on this issue?

Buzz Scherr:

The case was Bostock versus Clayton County, Georgia. It was a lawsuit filed by three individuals because in one way or another they were discriminated against by their employer.

Buzz Scherr:

The basic legal provision that was at stake was Title VII of the 1964 Civil Rights Act. Let me read what Title VII says. It says this basically. It makes it unlawful for an employer to fail or refuse to hire or to just discharge or otherwise discriminate against any individual because of such individual's sex. That's what the statute says. You can't fire someone because of their sex. So that's the law.

Buzz Scherr:

The case is Bostock himself was gay and he worked for the County, Clayton County, and he joined a gay softball league and he was fired because he was determined to be gay.

Buzz Scherr:

The second person, whose name I can't remember, mentioned in a conversation that he was gay, and he was thereby fired.

Buzz Scherr:

The third person, a woman, worked for a funeral home and came out and said from now on she's was a trans-woman... Was a trans-woman. She's now deceased. She came out and said, "From now on I am for all purposes a woman and ask that you recognize that," and she was fired because of that.

Buzz Scherr:

So all three of them in different ways were fired because of their sexual identity. The question before the court was does that language cover it or not? Now one court, the appellate court system within which Georgia is, the 11th Circuit, found that Bostock could be fired and it didn't violate Title VII.

Buzz Scherr:

The Circuit Court of Appeals in two other jurisdictions of the two other cases found that it was a Title VII violation, and that's how the case got up to the US Supreme Court. It's a classic example of why cases get taken by the US Supreme Court when there's a split in the lower Circuit Courts of Appeal.

Buzz Scherr:

So that's why the case was up there. It was a six to three decision, saying the firing of those three people, each of them was a Title VII violation. They were fired because of their sex.

Buzz Scherr:

Now the three in the minority... Well-

A. J. Kierstead (Host):

Yeah. I mean can we... We'll get to that because that's definitely fascinating with regards to this case especially, but how does the ruling protect workers going forward?

Buzz Scherr:

It protects everyone from being fired because of their sexual identity. That is if you identify as-

A. J. Kierstead (Host):

So strictly across for the sexual identity, including their... But also how they consider themselves from a gender perspective too?

Buzz Scherr:

Correct. One of the... Amy Stevens was a trans-woman. She identified as a woman, putting aside her biological status at birth. It covers transgender people. The word sex covers any sexual identity. Effectively when you read the majority opinion that's very clear.

Buzz Scherr:

To be honest, it was quite a surprise to many LGBTQ advocates around the country. There was a deep, deep concern that the four more moderate, or more liberal judges, depending on how you view it, were going to be outvoted by the five conservatives on the Court. That turned out not to be the case.

Buzz Scherr:

Not only did Chief Justice Roberts, who in some people's minds was the most likely one to side with the four moderates on the Court, but also Justice Gorsuch sided with the moderates on the Court, and he, in fact, wrote the majority opinion in the case.

Buzz Scherr:

So the outcome in terms of two from the conservative wing voting with the moderates/liberals was a surprise to many. There was not despair, but there was not a great deal of hope for the outcome that turned out.

A. J. Kierstead (Host):

Now does this specifically just in hiring situations with regards to the Civil Rights Act of '64 change the definition of what sex means, or does this have larger ramifications?

Buzz Scherr:

No. What's interesting about the case... Let me frame the case. This isn't a case about the US Constitution and discrimination under the US Constitution. It's not a Constitutional case. It's about what does that word mean in the statute? Very often in the Constitutional parsing of words, what does a word mean that's in the Constitution, you get into this very fraught discussion about originalism, what did the people who wrote the word mean when they wrote it back in 1792 or back in 1865 or 1866 or in 2018?

Buzz Scherr:

What did they mean when they were writing it, and that's a way to look for meaning with a word that's otherwise vague. What was so interesting... But that's not the circumstance here.

Buzz Scherr:

What was so interesting about what the Court said is they rejected by and large that whole debate and said there's no ambiguity about what the word sex means. It doesn't matter what it meant to the people who wrote the law back then. You only look at legislative intent if there is ambiguity about what the word sex means, and the Court was very clear in saying no ambiguity here. It includes all sorts of sexual identity. All three of those people were fired because of their sex.

A. J. Kierstead (Host):

And I'm assuming the dissenting opinion disagrees with you on that?

Buzz Scherr:

Yeah. There are two dissenting opinions, one by Justice Kavanaugh and the other by joined together Justice Thomas and Justice Alito, and they delve deeply into the meaning of words and originalism and textualism and interpretive jurisprudence for words.

Buzz Scherr:

But they tried to import a lot of the Constitutional conversation into understanding the statute, but the majority would have none of that. It was very interesting. It's a different form of textualism. It basically says well, the statute says sex. They must mean sex.

A. J. Kierstead (Host):

Now how would that be different... I mean are there other decisions to kind of... See, I'm a little apprehensive of the fact that... How was this different from a Constitutional decision?

Buzz Scherr:

It's not the Constitution and-

A. J. Kierstead (Host):

So because it's a statute they're given more leeway to interpret?

Buzz Scherr:

The words where they go about doing that in the Constitution, or the phrase or the clauses they go about doing that in the Constitution, they are... There is uncertainty about what they mean.

Buzz Scherr:

Let me give you an example. The confrontation clause in the Sixth Amendment says everyone shall have the right to confront the witnesses against them, okay? If that phrase is interpreted as in theory it means, then you would never allow hearsay in a criminal case, because the person who said the out of court thing, if they weren't in court they couldn't be confronted by the person against whom the statement is being offered.

Buzz Scherr:

The courts never interpreted the statute to mean that. They've understood... There's some additional words. They've understood that to not mean that. Now you can't... So Constitutional interpretation is different than statutory interpretation.

Buzz Scherr:

Statutory interpretation plays very much off of you take the plain meaning of a word as it's written and you assume that the legislature intended the word to mean what its plain meaning is. Only when you start to get statutes that use the word unreasonable or something like that, or does this person have a duty of care, or the word privacy in a statute. The word privacy does not appear in the US Constitution, but the word privacy in a statute, or unreasonable, or duty of care.

Buzz Scherr:

On their face it's a little unclear, more than a little unclear what the word unreasonable means. So then you look at the legislative intent when that's going on. But that was not the case... The majority opinion said unambiguously that's not the case here.

A. J. Kierstead (Host):

What sort of leeway do you predict be given to religious organizations or companies like that, like Hobby Lobby for example, as something in the past? It's not directly this, but there was religious leeway given on the decision. An obvious example with this specifically would be like a religious school with an individual teaching ethics based curriculum or something like that.

A. J. Kierstead (Host):

Do you predict there to be cases or decisions going forward to kind of narrow down what exactly this protects?

Buzz Scherr:

I think there will continue to be challenges from the religious right in terms of what they mean under Title VII, what religious liberty means under Title VII. I really don't have any prediction. It's not an area of my specialty, so I try and shy away from predictions in things that I don't know much about, although it makes it easier to predict.

Buzz Scherr:

I think that litigation is going to go on and on, and I know the religious right and the conservative movement is all aflutter about Justice Roberts and Justice Gorsuch abandoning them. One conservative commentator dramatically overstated the effect of this opinion, the Bostock opinion, by saying, "The conservative legal movement is over." So once again the sky is falling, but things will settle-

A. J. Kierstead (Host):

Typical 2020 politics.

Buzz Scherr:

Right. Things will settle down and we'll see how these things play out going forward.

A. J. Kierstead (Host):

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