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--:-- Sean Rameswaram: Today, June 15th, 2020, smack dab in the middle of Pride Month after a weekend of marches across the country declaring that all black trans lives matter. The Supreme Court of the United States handed down a landmark LGBTQ decision. Ian Milhiser, usually you would be at the Supreme Court for such a thing, but are they not even there right now? Is that what's going on?
--:-- Ian Milhiser: That's right. The building is closed and the justices, as far as I know, have been doing everything remotely. I'm stuck at home with some, unfortunately, very loud construction going on upstairs. But besides that, I'm able to cover the court from my home office. And this is important enough that we're going to tolerate any noise because we need to talk about this decision, yes?
--:-- Sean Rameswaram: That's right. No, this is a major decision. The Supreme Court held today that an existing federal law bans discrimination in the workplace on the basis of sexual orientation or gender identity. So it is no longer lawful to fire someone because they are gay or because they were trans. And this is a what, like a 1964 civil rights law?
--:-- Ian Milhiser: That's right. It's Title VII of the Civil Rights Act of 1964. And that law bans several different kinds of discrimination in the workplace. Among other things, it bans sex discrimination. And what the Supreme Court said today is that the concept of sex is so intimately tied up with the concepts of sexual orientation and gender identity that a law banning sex discrimination also effectively bans discrimination against LGBTQ people.
--:-- Sean Rameswaram: And the big will they or won't they question here with the Supreme Court was, will they say that this existing law applies to what we're seeing with the fight for rights for LGBTQ people, right?
--:-- Ian Milhiser: That's right. So again, the existing law bans, the exact words of the law is it bans discrimination because of sex. So what the Supreme Court said today is that if you have a law that bans discrimination because of sex, that means that the employer cannot treat men and women differently and it cannot treat an individual male employee differently than they would treat an individual female employee.
--:-- Sean Rameswaram: Let's say that you have two workers. Both of them are, you know, equally qualified. Both of them do their job just fine. And both of them are attracted to women. The only difference between them is that one of them is a man and one of them is a woman. If you say that the male employee is allowed to be attracted to women, but the female employee is not, that's just regular sex discrimination. You're treating men differently than women.
--:-- Ian Milhiser: And so that was the logic of the Supreme Court's decision today in Bostock. And if you gave you know nine out of 10 men women trans people on the street a chance to guess at who wrote the majority opinion in this six to three decision, they probably couldn't get it in six guesses. Is that is that accurate?
--:-- Sean Rameswaram: A lot of people would be surprised. So it was Justice Gorsuch who a very very conservative Trump appointee who wrote the majority opinion. Gorsuch has said over and over again that the only thing that matters when interpreting a law is the text of the law. It doesn't matter what people thought the law would do. It doesn't matter if people would be surprised that the text leads to some unexpected outcome. The only thing that matters is what does the text of the law say.
--:-- Ian Milhiser: And what Gorsuch's Bostock opinion says is, look, you read Title VII, it says no discrimination because of sex. You can't treat men in your workplace differently than you treat women. And so if you allow your male employees to be sexually attracted to women, you have to allow your female employees to be sexually attracted to women. If you allow employees that you may falsely perceive as male to dress in a certain way, then you have to allow employees that you perceive as female to dress in a certain way.
--:-- Sean Rameswaram: Ian, we talked to you about the cases in this decision last fall when we were previewing this new Supreme Court session. But for all the people who rightly feel like that was a million years ago right now, can you remind us about the stories involved here and the people who brought these cases?
--:-- Ian Milhiser: Sure. So there were three plaintiffs here, two gay men and one trans woman. Gerald Bostock was the child welfare coordinator for Clayton County, Georgia. By all accounts, he was an exceptional employee and he claims that he was fired shortly after he joined a gay softball league. And so he claims that that's what tipped his employer off to the fact that he's gay and led to him losing his job.
--:-- Sean Rameswaram: The second gay plaintiff is a man named Don Zarda. He was a skydiving instructor in New York. He also claims that he was fired shortly after his employer discovered that he is gay. And then the third case involves Amy Stevens, who worked at a funeral home in Michigan. She lost her job as well. Her employer decided to fire her. And so that case presented the question of whether anti-trans discrimination is legal.
--:-- Ian Milhiser: The strongest argument against what the court did today is that the Civil Rights Act of 1964 is the Civil Rights Act of 1964. And if you know much about LGBT rights and LGBT history, 1964 was not a good year to be gay or trans. I believe that the federal government had an outright ban on hiring gay people. The modern concept of what it means to be a transgender person just wasn't fully formulated in the 1960s.
--:-- Sean Rameswaram: Right. And so I don't think anyone plausibly thinks that Congress thought that it was banning anti-gay or anti-trans discrimination when it passed the Civil Rights Act of 1964. The counter to that, and this was the thrust of the court's opinion in Bostock, is that it doesn't matter. The only thing that matters is the text of the law.
--:-- Ian Milhiser: So we got a 6-3 decision today. We talked a little bit about the majority. What were the dissenters saying, which I assume are what, Kavanaugh, Alito, and Thomas?
--:-- Sean Rameswaram: Yeah, I mean, the dissenting arguments are, you know, very much rooted in this notion that what people thought was the law in 1964 should remain the law. I mean, Alito's dissenting opinion starts off very angrily. And he says, you know, the court isn't interpreting the law. It's changing the law. And if we're going to allow anti-LGBT discrimination to be banned, it must come from a new act of Congress.
--:-- Ian Milhiser: So they cue very strongly to the line that Congress knew what it was doing in 1964 and it wasn't this. And I mean this decision came down this morning and we're talking just afternoon here. But has the Trump administration or the DOJ basically taken the same argument there?
--:-- Sean Rameswaram: So I haven't seen any statement from Trump in particular, but this administration has been very hostile to LGBT rights. And there are a lot of key people in various parts of the administration. The director of the Civil Rights Office in the Department of Health and Human Services, for example, has basically made his career as an anti-LGBT rights activist. So I have no doubt that the Trump administration is going to try to resist this decision. I don't know if they have too many options, though. The decision is pretty airtight.
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--:-- Ian Milhiser: Ian, you mentioned this decision is pretty airtight, but how might it affect the Trump administration's unwavering commitment to rolling back any progress made on LGBTQ rights under President Obama?
--:-- Sean Rameswaram: Sure. I mean, this administration is extraordinarily hostile to LGBT rights. Just last Friday, they handed down a new regulation saying that health providers may discriminate against trans people. Now, I think that regulation probably isn't going to survive very long because of what the Supreme Court did today. They have blocked Obama administration policies seeking to prevent anti-trans discrimination in schools. They've implemented a ban on trans people in the military. And I think that most of those policies, with the exception of the military ban, are now very much in jeopardy because of what the Supreme Court has done.
--:-- Sean Rameswaram: I think that it's going to be very hard to defend the other efforts at LGBT discrimination that have come out of this administration after what the Supreme Court did today in Bostock. So how long does the country have to wait to figure that out? How is it all going to be adjudicated?
--:-- Ian Milhiser: It's a good question. So to back up for a second again, Bostock is a case about what it means to engage in sex discrimination. And it says that it is sex discrimination to say your male employees can be attracted to women but your female employees cannot. That it is sex discrimination to say that if your employer perceives you as a man then they can impose a whole long list of you know how you have to dress and how you have to act and so on and so forth.
--:-- Sean Rameswaram: Lots of federal statutes ban discrimination either because of sex, on account of sex, on the basis of sex. You know, some variation of those words appears in a federal law banning education discrimination, banning health care discrimination. And so I think it's going to be very, very hard for the Trump administration to argue at this point that any law that bans sex discrimination permits discrimination against people because of their sexual orientation or gender identity.
--:-- Ian Milhiser: But does that mean that there still be legal challenges? I think they still fight it. The process of how this will play out is that someone going to have to file a lawsuit. And so, you know, take the trans health discrimination regulation that was handed down on Friday. If someone hasn't already filed a lawsuit challenging that, I'm sure they will. And the first case that I bet they're going to cite in their brief explaining why it should be struck down is going to be Bostock.
--:-- Sean Rameswaram: And so this is going to take a little while. I think some of it is going to depend on how much the Trump administration wants to drag it out. I think the courts are going to have a tough time getting around Bostock. And of course, if, you know, eight months from now, Joe Biden is president, I think that the Biden administration is very likely to settle those cases and make them go away.
--:-- Ian Milhiser: Okay, so you're saying it's just a matter of time until these anti-LGBTQ policies and education and healthcare put forth by the Trump administration or history. What about the military? Why is that one tougher? Is it because Donald Trump is the commander in chief? Something else?
--:-- Sean Rameswaram: I think the court will view that as a tougher case because the court typically gives a lot of deference to the elected branches in matters involving the military and national security. So I'm less optimistic about the chances of a plaintiff challenging the transgender military ban. I mean, notably, Don't Ask, Don't Tell, the ban on openly gay service in the military, had to be repealed through an act of Congress and not through the application of an existing civil rights law.
--:-- Sean Rameswaram: But, I mean, Bostock's still a great opinion for them, and they have a much better shot today than they did yesterday. How does that affect previous decisions like the masterpiece cake shop decision where the Supreme Court, correct me if I'm wrong, said that a owner of a essentially bakery had the right to not make cakes for gay people based on his religious beliefs, yeah?
--:-- Ian Milhiser: The Supreme Court is very likely, and in fact, there's a case pending in front of the Supreme Court right now called Fulton v. City of Philadelphia, which raises the question of whether or not if you have a religious objection to LGBT people, you can be exempted because of your religious belief from civil rights laws protecting those individuals. And so what the Supreme Court gaveth today, they could take a lot of that back in Fulton by saying that if an employer is caught engaging in discrimination against a gay or trans employee or bisexual employee and that employer claims a religious objection, then that religious objection might trump the employee's civil rights.
--:-- Sean Rameswaram: Hmm. So this isn't the end of this story today, but that doesn't take away from the significance of the decision? So this isn't the end of the story about LGBT discrimination in the United States, but this is a really important chapter.
--:-- Ian Milhiser: One thing that the Supreme Court said in the Hobby Lobby decision, which was the seminal conservative decision expanding the power of religious objectors to exempt themselves from certain laws, was that Hobby Lobby only applies to what are called closely held companies. Basically, large companies that are traded on the stock market cannot claim that they have a religious objection to something because Walmart isn't a Christian company. Microsoft isn't a Jewish company. Apple isn't a Muslim company.
--:-- Sean Rameswaram: When you're that large, it's hard to claim that you have a religious identity. And so I think the likely result – and this is a bit of speculation – but I think the likely result is that employees of large companies are now protected from LGBT discrimination and government employees are now protected from LGBT discrimination. I think there's a possibility the Supreme Court will say that employees of smaller companies, companies that aren't publicly traded, they might have to worry about their boss claiming a religious exemption. But even that is open-ended right now.
--:-- Sean Rameswaram: Ian, thank you. I hope construction's over before the next historic decision from the Supreme Court. All right.
