Might SCOTUS Split on the Sexual Orientation and Transgender Employment Discrimination Cases?

When the lines are long and the protesters loud, predicting the path the Supreme Court might take is a perilous practice. Especially if the Justice who voted most in the majority last term—Justice Kavanaugh—is nearly silent.

And yet…when the lawyer arguing that gender identity is covered under Title VII, David Cole, spends most of him time explaining how the case the Court will decide after he wins should be decided—it is hard to suspect his hasn’t already won.

Title VII prohibits discrimination “because of . . . sex.” In Zarda v. Altitude Express and Bostock v. Clayton County Board of Commissioners the Supreme Court will decide whether discrimination on the basis of sexual orientation violates Title VII. In EEOC v. R.G. & G.R. Harris Funeral Homes the Supreme Court will decide whether Title VII includes gender identity.

The essence of the argument in the sexual orientation cases, which the Supreme Court heard first today in oral argument, is whether sexual orientation is a subset of sex or a separate category. Much of the line of questioning of all the litigants was predictable. For example, Justice Alito, Chief Justice Roberts, and even Justice Ginsburg asked the attorney arguing in favor of Title VII coverage what to make of the fact that in 1964 when Title VII was adopted Congress could not have been thinking sexual orientation was protected under the statute.

While the more conservative Chief Justice Roberts and Justices Alito and Gorsuch seemed skeptical of whether Title VII includes sexual orientation Justice Kavanaugh only asked—of one of the attorneys arguing the law doesn’t cover sexual orientation—whether Title VII should be interpreted literally. The more liberal Justices—Ginsburg, Breyer, Kagan, and Sotomayor asked questions of both sides but mostly seemed to support interpreting Title VII broadly. Without getting a stronger sense of what Justice Kavanaugh is thinking it is hard to predict how this case will come out.   

Even in the sexual orientation case the question of whether it would violate the Title VII rights of a transgender person to not allow him or her to use the bathrooms of the sex he or she identifies with came up. The question dominated the transgender argument no matter how many times David Cole said the current case didn’t raise that question and that how the Court rules in current case wouldn’t determine the outcome of that case.

Further cementing the notion that the Court is going to rule that gender identity is covered under Title VII was the lack of questions for David Cole after the Court moved on from the transgender bathroom question. After Justice Kagan asked Cole an easy question, Justice Gorsuch asked if a case is “really close” shouldn’t the Court consider the “social upheaval” caused by transgender persons using bathrooms different from the sex they were assigned at birth. Cole responded that in the courtroom right now there were transgender lawyers who identified as male following the Court’s dress code for men and using the men’s bathroom without causing a disruption.

Part of the reason the Court may be more inclined to rule in favor of interpreting Title VII to include gender identity is that in the 1980s the Court ruled gender stereotyping is sex discrimination under Title VIII. David Cole argued that the “ultimate sex stereotype” is that a person must identify and live as the sex he or she was assigned with at birth.