In a trio of cases being heard this week, the Supreme Court is set to decide whether it’s illegal to fire someone for being gay or transgender. But if SCOTUS decides the answer is “no,” it not only will leave LGBT Americans unprotected, it could ultimately undermine all claims of sexual harassment, regardless of sexual orientation or gender identity.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of “sex.” The Equal Employment Opportunity Commission (EEOC) has interpreted that to include sexual orientation
and gender identity since the Obama administration. But the Trump administration is challenging that, claiming that when the law was adopted, neither sexual orientation or gender identity were intended for protection and should not be “read into” the law.

Judicial Interpretation

Without getting too technical, the decision hinges on how the Justices interpret the law. Judges can take a variety of approaches to interpretation, depending on the weight they give to the intent and understanding of the lawmakers who passed the text.

Justice Antonin Scalia was a fierce advocate for textualism; that is, words should not be interpreted “strictly” or “leniently,” but rather reasonably.  If the reasonable interpretation of the text results in consequences unforeseen by the lawmakers who drafted it, Scalia argued it was for the legislature to address by drafting clearer laws.  Importantly, newly appointed Justices Gorsuch and Kavanaugh purport to subscribe to Scalia’s theory of textualism.  So, in theory, they should interpret the protection against discrimination based on sex to extend to all of its reasonable meanings, including sexual orientation and gender identity.

Why is this important?

If the Court decides the protection against discrimination based on “sex” is limited to the meaning understood by lawmakers in 1964, it could exclude sexual orientation and gender identity.  While 22 states prohibit job discrimination based on sexual orientation and 21 prohibit discrimination based on gender identity, LGBT Americans in the remaining states would have no protections against discrimination at all – essentially, the Court would be saying it’s perfectly legal to fire someone for being gay or transgender.  And while the cases before the Court relate to job discrimination, the principles involved also apply to discrimination in other areas such as housing and health care.

How does this relate to sexual harassment?

If the Court rules that Title VII should be interpreted based on the original intent and understanding of the lawmakers who drafted it in 1964, it could undermine the basis for all sexual harassment claims.  Sexual harassment was not a concept understood or intended for protection by lawmakers in 1964.  It was not fully formed as a cognizable theory until the 1970s.  In fact, the Supreme Court did not hold that sexual harassment was covered by Title VII until 1986 in Meritor Savings Bank v. Vinson.  Any decision by the Court now holding that Title VII should be interpreted based on the understanding of the law in 1964 could undermine decisions that extended the law to other areas later, including sexual harassment.

 

The cases being heard this week doubtlessly will result in landmark decisions affecting millions of LGBT Americans.  But the repercussions could extend much further than that, potentially undermining protections against discrimination for all Americans.