Supreme Court Takes On Sexual Orientation, Gender Identity Cases

“‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all.’” Lewis Carroll, Through the Looking-Glass, p. 205 (1934).

Last week, the Supreme Court of the United States announced that it would hear three cases relating to the scope of Title VII of the Civil Rights Act of 1964. One of the three cases that the Court has agreed to hear is the case of Altitude Express Inc. v. Zarda, which was filed here in New York.

Title VII makes it unlawful for employers with 15 or more employees to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Each of the three cases that the Supreme Court has agreed to hear relates to Title VII’s ban on workplace sex discrimination. In two of the cases (including Zarda), the plaintiffs contend that Title VII, in banning sex discrimination, also banned discrimination based upon sexual orientation. In the other, the plaintiff argues that Title VII, in banning sex discrimination, also banned discrimination based upon gender identity. In essence, the plaintiffs are inviting the Court to read nonexistent pro-LGBT provisions into Title VII. The Second Circuit in Zarda accepted this invitation, ruling that Title VII bans workplace discrimination based on sexual orientation. In his dissenting opinion, Second Circuit Judge Gerard E. Lynch wrote the following:

Speaking solely as a citizen, I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII…I would be equally pleased to learn that Congress had passed such legislation more than a half-century ago—until I actually woke up and realized that I must have been [dreaming]. Because we all know that Congress did no such thing.

New Yorker’s Family Research Foundation strongly disagrees with Judge Lynch’s personal views about pro-LGBT federal legislation. However, Judge Lynch is right about one thing: It is glaringly obvious that Title VII does not ban discrimination based upon sexual orientation.

The three upcoming cases are not really about homosexuality and transgenderism. They are about whether the Supreme Court will do its job and interpret the law as it is written, or whether the justices will instead seek to impose their own views and preferences upon the law. Given that Justice Anthony Kennedy (who was notorious for his judicial activism on LGBT issues) is retired and has been replaced by Justice Brett Kavanaugh, there is reason to hope that the Court will do the right thing and dismiss all three cases.