Issue of the Week: Human Rights, Economic Opportunity, Disease, Personal Growth
Landmark Decision Protects L.G.B.T. Workers, Tbe New York Times, June 16, 2020
As Coronavirus cases and deaths increase around the world, as the streets of the US continue to be filled with protest (including a remarkable “silent march” organized by Black Lives Matter on Friday here in Seattle of 60,000 people attended by one of the writers here) about police killing of blacks (with another grotesque example of a black man shot in the back and killed just occurring), racism and inequality, as the world’s streets exploding about economic inequality before the pandemic began have been amplified by all the above–an extraordinary related event occurred today.
The front-page cover story in tomorrow’s New York Times about an historic decision today by the US Supreme Court, posted online tonight, has the banner headline, Landmark Decision Protects L.G.B.T. Workers.
The report begins:
The Supreme Court ruled on Monday that a landmark civil rights law protects gay and transgender workers from workplace discrimination, handing the movement for L.G.B.T. equality a long-sought and unexpected victory.
“An employer who fires an individual merely for being gay or transgender defies the law,” Justice Neil M. Gorsuch wrote for the majority in the 6-to-3 ruling.
The online edition began with:
The court said the language of the Civil Rights Act of 1964, which prohibits sex discrimination, applies to discrimination based on sexual orientation and gender identity.
It’s an historic day for civil rights, human rights and the rule of law in a democracy.
The Civil Rights Act of 1964 was one of the historic results of the civil rights movement led by African Americans–a direct line from emancipation from slavery a century before, to then, to now, being underlined daily. The “based on sex” clause was not in the original proposed law and was added to the section on equal employment opportunity under pressure from women’s groups, in spite of the fact that the amendment was in part made by an anti-civil rights congressman who had supported the Equal Rights Amendment for women, but apparently hoped sexism would stop the Civil Rights Act (divide and conquer tried and failed this time). It is this clause that made possible today’s decision which defined discrimination based on “sex” as sexual orientation and gender identity.
Further, two conservative justices made this possible, as well as being a 6-3 decision.
Chief Justice John G. Roberts Jr., who had dissented from the decision that made it illegal to bar marriage equality in 2015, and Neil M. Gorsuch, President Trump’s first appointment to the court, supported the ruling.
With Gorsuch writing the powerful opinion.
And perhaps even more powerful is the affirmation of the rule of law in a democracy and the Supreme Court being the final word in this respect in a system famously designed at best to provide checks and balances regardless of the degree of partisanship in politics or the degree of an imperial presidency.
This has happened more than once in US history, just as justices have surprised their initial partisan supporters once on the court. More on this and how the court has interacted with history in a future post.
For now, this historic day deserves to be focused on singularly.
With one related honorable mention first.
One of many stories that have been lost on most in the increasing blizzard of events that is life on earth, a related one to today and the times, is the death of Larry Kramer–HIV-AIDS and gay rights activist, and founder of Act Up, the movement for radical action against AIDS that got results during that pandemic’s early days in the US (which we wrote about more than once, last mentioned as part of our lengthy post on March 29, The End Of Civilization As We Knew It, Part Eighteen.)
Here’s an excerpt from Larry Kramer’s obituary in the Times by Daniel Lewis on May 27:
He sought to shock the country into dealing with AIDS as a public-health emergency and foresaw that it could kill millions regardless of sexual orientation. …
An author, essayist and playwright — notably hailed for his autobiographical 1985 play, “The Normal Heart” — Mr. Kramer had feet in both the world of letters and the public sphere. In 1981 he was a founder of the Gay Men’s Health Crisis, the first service organization for H.I.V.-positive people, though his fellow directors effectively kicked him out a year later for his aggressive approach. …
He was then a founder of a more militant group, Act Up (AIDS Coalition to Unleash Power), whose street actions demanding a speedup in AIDS drugs research and an end to discrimination against gay men and lesbians severely disrupted the operations of government offices, Wall Street and the Roman Catholic hierarchy. …
“One of America’s most valuable troublemakers,” Susan Sontag called him.
Even some of the officials Mr. Kramer accused of “murder” and “genocide” recognized that his outbursts were part of a strategy to shock the country into dealing with AIDS as a public-health emergency.
The infectious-disease expert Dr. Anthony S. Fauci, longtime director of the National Institute of Allergy and Infectious Diseases, was one who got the message — after Mr. Kramer wrote an open letter published in The San Francisco Examiner in 1988 calling him a killer and “an incompetent idiot.”
“Once you got past the rhetoric,” Dr. Fauci said in an interview for this obituary, “you found that Larry Kramer made a lot of sense, and that he had a heart of gold.”
Mr. Kramer, he said, had helped him to see how the federal bureaucracy was indeed slowing the search for effective treatments. He credited Mr. Kramer with playing an “essential” role in the development of elaborate drug regimens that could prolong the lives of those infected with H.I.V., and in prompting the Food and Drug Administration to streamline its assessment and approval of certain new drugs.
In recent years Mr. Kramer developed a grudging friendship with Dr. Fauci, particularly after Mr. Kramer developed liver disease and underwent the transplant in 2001; Dr. Fauci helped get him into a lifesaving experimental drug trial afterward.
Their bond grew stronger this year, when Dr. Fauci became the public face of the White House task force on the coronavirus epidemic, opening him to criticism in some quarters.
“We are friends again,” Mr. Kramer said in an email to the reporter John Leland of The New York Times for an article published at the end of March. “I’m feeling sorry for how he’s being treated. I emailed him this, but his one line answer was, ‘Hunker down.’”
. . .
Now to the cover story on today’s Supreme Court Decision and related articles in Tomorrow’s New York Times:
“Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules”
By
The court said the language of the Civil Rights Act of 1964, which prohibits sex discrimination, applies to discrimination based on sexual orientation and gender identity.
WASHINGTON — The Supreme Court ruled on Monday that a landmark civil rights law protects gay and transgender workersfrom workplace discrimination, handing the movement for L.G.B.T. equality a long-sought and unexpected victory.
“An employer who fires an individual merely for being gay or transgender defies the law,” Justice Neil M. Gorsuch wrote for the majority in the 6-to-3 ruling.
That opinion and two dissents, spanning 168 pages, touched on a host of flash points in the culture wars involving the L.G.B.T. community — bathrooms, locker rooms, sports, pronouns and religious objections to same-sex marriage. The decision, the first major case on transgender rights, came amid widespread demonstrations, some protesting violence aimed at transgender people of color.
Until Monday’s decision, it was legal in more than half of the states to fire workers for being gay, bisexual or transgender. The vastly consequential decision thus extended workplace protections to millions of people across the nation, continuing a series of Supreme Court victories for gay rights even after President Trump transformed the court with his two appointments.
The decision achieved a decades-long goal of gay rights proponents, one they had initially considered much easier to achieve than a constitutional right to same-sex marriage. But even as the Supreme Court established that right in 2015, workplace discrimination remained lawful in most of the country. An employee who married a same-sex partner in the morning could be fired that afternoon for being gay.
Monday’s lopsided ruling, coming from a fundamentally conservative court, was a surprise. Justice Gorsuch, who was Mr. Trump’s first appointment to the court, was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
Supporters of L.G.B.T. rights were elated by the ruling, which they said was long overdue.
“This is a simple and profound victory for L.G.B.T. civil rights,” said Suzanne B. Goldberg, a law professor at Columbia. “Many of us feared that the court was poised to gut sex discrimination protections and allow employers to discriminate based on sexual orientation and gender identity, yet it declined the federal government’s invitation to take that damaging path.”
In remarks to reporters, Mr. Trump said he accepted the ruling. “I’ve read the decision,” he said, “and some people were surprised, but they’ve ruled and we live with their decision.” He added that it was a “very powerful decision, actually.”
The Trump administration had urged the court to rule against gay and transgender workers, and it has barred most transgender people from serving in the military. The Department of Health and Human Services issued a regulation on Friday that undid protections for transgender patients against discrimination by doctors, hospitals and health insurance companies.
Those actions involved different laws from the one at issue on Monday, and the Supreme Court has allowed the military ban to go into effect while lawsuits challenging it proceed. Still, the court’s ruling suggested that a new era in transgender rights has arrived.
The decision, covering two sets of cases, was the court’s first on lesbian, gay, bisexual and transgender rights since the retirement in 2018 of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions. Proponents of those rights had worried that his departure would halt the progress of the movement toward equality.
The Supreme Court is generally not very far out of step with popular opinion, and large majorities of Americans oppose employment discrimination based on sexual orientation, and substantial ones oppose it when based on gender identity. More than 200 major corporations filed a brief supporting the gay and transgender employees in the cases before the court.
The decision was both symbolic and consequential, and it followed in the tradition of landmark rulings on discrimination. Unlike Brown v. Board of Education, the 1954 decision that said racially segregated public schools violated the Constitution; Loving v. Virginia, the 1967 decision that struck down bans on interracial marriage; and Obergefell v. Hodges, the 2015 decision that struck down state bans on same-sex marriage, the new decision did not involve constitutional rights.
Instead, the question for the justices was the meaning of a statute, Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex. They had to decide whether that last prohibition — discrimination “because of sex” — applies to many millions of gay and transgender workers.
Justice Gorsuch wrote that it did.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” he wrote.
“It is impossible,” Justice Gorsuch wrote, “to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The decision will allow people who say they were discriminated against in the workplace based on their sexual orientation or gender identity to file lawsuits, just as people claiming race and sex discrimination may. The plaintiffs will have to offer evidence, of course, and employers may respond that they had reasons unrelated to discrimination for their decisions.
Justice Samuel A. Alito Jr., in a dissent joined by Justice Clarence Thomas, wrote that the majority had abandoned its judicial role.
“There is only one word for what the court has done today: legislation,” Justice Alito wrote. “The document that the court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”
“A more brazen abuse of our authority to interpret statutes is hard to recall,” he wrote. “The court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.”
The common understanding of sex discrimination in 1964, Justice Alito wrote, was bias against women or men and did not encompass discrimination based on sexual orientation and gender identity. If Congress wanted to protect gay and transgender workers, he wrote, it could pass a new law.
“Discrimination ‘because of sex’ was not understood as having anything to do with discrimination because of sexual orientation or transgender status” in 1964, he wrote. “Any such notion would have clashed in spectacular fashion with the societal norms of the day.”
Justice Alito added that the majority’s decision would have pernicious consequences.
He said the majority left open, for instance, questions about access to restrooms and locker rooms. “For women who have been victimized by sexual assault or abuse,” he wrote, “the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.”
Nor did the majority address, he said, how its ruling would affect sports, college housing, religious employers, health care or free speech.
“After today’s decision,” Justice Alito wrote, “plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination.”
“Although the court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long,” he wrote. “The entire federal judiciary will be mired for years in disputes about the reach of the court’s reasoning.”
Justice Gorsuch responded that the court’s ruling was narrow. “We do not purport to address bathrooms, locker rooms or anything else of the kind,” he wrote. “Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”
He added that Title VII itself included protections for religious employers and that a separate federal law and the First Amendment also allow religious groups latitude in their employment decisions.
Justice Brett M. Kavanaugh, Mr. Trump’s other appointment to the court, issued a separate dissent making a point about statutory interpretation. “Courts must follow ordinary meaning, not literal meaning,” he wrote, adding that the ordinary meaning of “because of sex” does not cover discrimination based on sexual orientation or gender identity.
“Seneca Falls was not Stonewall,” he wrote. “The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”
The court considered two sets of cases. The first concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation: Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623.
The first case was filed by Gerald Bostock, who was fired from a government program that helped neglected and abused children in Clayton County, Ga., just south of Atlanta, after he joined a gay softball league.
The second was brought by a skydiving instructor, Donald Zarda, who also said he was fired because he was gay. His dismissal followed a complaint from a female customer who had expressed concerns about being strapped to Mr. Zarda during a tandem dive. Mr. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.”
The case on gender identity, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107, was brought by a transgender woman, Aimee Stephens, who was fired from a Michigan funeral home after she announced in 2013 that she was a transgender woman and would start working in women’s clothing.
Mr. Zarda died in an accident in 2014, and Ms. Stephens died on May 12. Their estates continued to pursue their cases after their deaths.
Critics sometimes say that the Congress does not hide elephants in mouse holes, Justice Gorsuch wrote on Monday, meaning that lawmakers do not take enormous steps with vague terms or in asides.
“We can’t deny that today’s holding — that employers are prohibited from firing employees on the basis of homosexuality or transgender status — is an elephant,” he wrote. “But where’s the mouse hole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them.”
“This elephant,” he wrote, “has never hidden in a mouse hole; it has been standing before us all along.”
. . .
“Surprise! Justice on L.G.B.T. Rights From a Trump Judge”
By Opinion Columnist, June 15, 2020, The New York Times
So much for “But Gorsuch.”
The new season of my favorite television show, “The Good Fight,” begins with the heroine, the feminist lawyer Diane Lockhart, awakening in what seems at first like a giddy alternative reality in which Hillary Clinton won the 2016 election. She remembers the horrors of the last three and a half years, but no one else seems to. A crushing weight lifts as she convinces herself it was all an awful dream.
Then she is sent to a meeting with her firm’s new client, Harvey Weinstein. There’s been no #MeToo movement. Instead, corporate “lean in” feminism is at its apogee. Diane realizes there have been gains made since Donald Trump took office that are unbearable to give up.
Obviously, a world in which Clinton beat Trump would be better in a million ways. Still, right now we have two big examples of how Trump’s perverse presidency has inadvertently led to progress.
The sudden, rapid embrace of the Black Lives Matter movement by white people is a function of the undeniable brutality of George Floyd’s videotaped killing. But public opinion has also moved left on racial issues in reaction to an unpopular president who behaves like a cross between Bull Connor and Andrew Dice Clay.
And the thrilling 6-3 decision the Supreme Court just issued upholding L.G.B.T. equality wouldn’t be as devastating to the religious right if it had happened under a President Clinton.
Before Monday, you could legally be fired for being gay, bisexual or transgender in 26 states. Now the court has ruled that gay and transgender people are protected by Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of sex. The decision has extra cultural force because it was written by Justice Neil Gorsuch, a Trump appointee, and joined by the conservative chief justice John Roberts.
“The whole point of the Federalist Society judicial project, the whole point of electing Trump to implement it, was to deliver Supreme Court victories to social conservatives,” tweeted the conservative writer Varad Mehta. “If they can’t deliver anything that basic, there’s no point for either. The damage is incalculable.”
The phrase “But Gorsuch” is shorthand for how conservatives justify all the moral compromises they’ve made in supporting Trump; controlling the Supreme Court makes it all worth it. So there’s a special sweetness in Gorsuch spearheading the most important L.G.B.T. rights decision since the 2015 ruling in Obergefell v. Hodges, which established a constitutional right to same-sex marriage.
This isn’t simply Schadenfreude. The fact that this momentous ruling was written by a right-wing judge sends a message that progress on L.G.B.T. rights will be very hard to reverse.
Had Clinton, like Trump, been able to put two justices on the court, the ultimate decision in this case would likely have been much the same, perhaps with a different legal rationale. But social conservatives would have been animated by outraged opposition, sure that winning the next election was key to re-establishing power. Now they’re demoralized.
The Trump administration will continue to try to roll back gay and transgender rights. Just last Friday, it finalized a regulation saying that the Affordable Care Act’s ban on sex discrimination in medical care doesn’t apply to trans people, using an argument similar to the one the Supreme Court rejected on Monday. Trump judges on lower courts can be expected to rule in favor of religious conservatives.
But these will be rear-guard actions. “The Roe v. Wade of religious liberty is here, and it was delivered by golden boy Neil Gorsuch,” lamented conservative lawyer Josh Hammer.
Legal experts who watched the arguments unfold weren’t entirely shocked that Gorsuch ruled as he did. The justice is well known as a textualist, someone who holds that the meaning of a law turns on the text alone, not the intentions of its drafters.
“What I saw in the argument was Gorsuch really struggling with the fact that the textual argument seemed really powerful to him,” Samuel Bagenstos, a University of Michigan law professor, told me. “There’s no way to think about sexual orientation discrimination without sex being part of it.”
Bagenstos was more surprised that Roberts — who, after all, wrote a dissent in Obergefell — joined the majority. Roberts may have simply been persuaded by the merits of the case, but Bagenstos suspects he was responsive to the political climate as well.
“This is going to be a very popular decision,” Bagenstos said. “It is something that the American people will largely agree with. And you never go wrong predicting that the Supreme Court is going to follow the election returns.”
None of this means that progressives can rest easy about this court. We’re awaiting important decisions on DACA, which could put hundreds of thousands of Dreamers in danger of deportation, and on June Medical Services v. Russo, which could end up eliminating abortion access in many states.
But on Monday, Gorsuch delivered a blow to the religious right that a court full of Clinton appointees could never have managed. Even the darkest timeline has its consolations.
. . .
By June 15, 2020, The New York Times
The Supreme Court says you can’t be fired for being gay or transgender.
In an emphatic win for civil rights, equal justice and common sense, the Supreme Court ruled on Monday that federal law bars employers from firing workers for being lesbian, gay, bisexual or transgender.
The vote was 6 to 3. It should have been unanimous.
As Justice Neil Gorsuch explained for the court’s majority, the right result could not be clearer. The federal law at issue, Title VII of the 1964 Civil Rights Act, prohibits employment discrimination “because of sex.” And “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Justice Gorsuch wrote. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
In separate cases consolidated for argument, three plaintiffs — two gay men and a transgender woman — had sued their employers for firing them after learning of their sexual orientation or transgender status.
It does not matter, the court said, whether the employer might have had additional reasons for the firing. “Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view,” Justice Gorsuch wrote.
Nor can an employer avoid the law’s prohibition by claiming it treats all men the same or all women the same. The bottom line, he wrote, is that Congress wrote a law with intentionally broad language, and “ours is a society of written laws.”
Monday’s decision will soon have ripple effects, including the likely invalidation of the Trump administration’s decision last week to eliminate protections against discrimination in health care for transgender patients.
In a lengthy dissent that sounded like it was written in 1964, Justice Samuel Alito, joined by Justice Clarence Thomas, argued that the court’s job is to interpret statutes to “mean what they conveyed to reasonable people at the time they were written.” It’s hard to imagine these justices applying the same logic to the meaning of the Second Amendment, which reasonable people at the time understood to apply to bayonets and muskets. But we digress.
Justice Alito’s point was that the lawmakers who passed the Civil Rights Act could not possibly have anticipated “sex” to cover discrimination on the basis of sexual orientation or gender identity.
That’s true, of course. They also could not have imagined that it would cover sexual harassment of male employees — and yet in 1998 the Supreme Court found unanimously that it did. “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed,” the court said then, in an opinion written by Justice Antonin Scalia.
Justice Gorsuch, who succeeded Justice Scalia on the bench, reiterated this basic concept on Monday: “The limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”
While we’re on the subject of legislators’ intentions, it is worth noting the historical irony behind the inclusion of “sex” in the civil rights law — which was, after all, targeted primarily at racial discrimination. The term was added at the last minute by Representative Howard Smith, a staunch segregationist from Virginia, in the hope that lawmakers would see it as a bridge too far and vote down the entire bill. Mr. Smith’s failed gambit continues to pay off in ways that he surely never could have dreamed.
Still, there are reasons to be cautious.
Justice Gorsuch’s commitment to textualism, a method of interpreting laws by looking solely to their plain words, achieved a just result in this case, but when applied too rigidly it can lead to very unjust results. In his previous job on a federal appeals court, then-Judge Gorsuch wrote an opinion holding that a trucker could legally be fired for abandoning his broken-down truck in subzero temperatures — based on a wooden reading of the word “operate.” In short, this particular victory for gay rights was based not on the fundamental equality or dignity of gay and transgender Americans, as previous Supreme Court decisions have been; it was based on the meaning of a single word.
The opinion also hints at a potentially serious obstacle on the horizon: claims by employers that being prohibited from discriminating against gay and transgender workers violates their religious convictions. Such claims are likely to find a sympathetic ear among this Supreme Court’s conservative majority, which has repeatedly voted to protect if not promote religion and religious objectors.
For now, however, Monday’s decision is a victory to savor, the next major step in a line of gay rights decisions stretching back nearly a quarter century, and until now written solely by Justice Anthony Kennedy.
Justice Brett Kavanaugh, who succeeded Justice Kennedy in 2018, graciously admitted as much in his own dissent. Although he disagreed with the majority’s opinion, he wrote: “It is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity and grit — battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”
Take pride, indeed.