Swiss Cheese Civil Rights
The LGBTQ+ discrimination cases before the Supreme Court explained in context
Tomorrow the Supreme Court will hear arguments in the biggest LGBTQ+ rights cases since marriage equality. The decision on these cases they issue next spring will arguably have a greater impact on the daily lives of queer people than all of the other milestone cases that have moved our civil rights forward thus far.
At issue is whether the Civil Rights Act prohibits employment discrimination against people because of their sexual orientation or gender identity. There could hardly be a more consequential issue — the need to find a job and earn a living, to get up every day and go to work, defines the most basic imperative of our lives. A rollback of the rights established in lower courts would threaten LGBTQ+ people’s ability to put a roof over our heads and food on our table. A victory would bolster the progress towards full civil rights.
And yet the prospect of queer people securing nationwide employment discrimination protection seems incongruous in our current political moment.
The Trump administration has unleashed an assault on civil rights that is hard to overstate — from the Muslim ban to the trans military ban, from support for voter suppression laws to doubling down on mass incarceration, from denying healthcare to LGBTQ+ people in the name of religious liberty to trying to undo the Affordable Care Act, and let’s not forget concentration camps, family separations, and other human rights abuses of immigrants. The Leadership Conference on Civil Rights keeps a running list of the administration’s civil and human rights rollbacks; as of today, it has 174 items on it. If you do the math, that’s a pace of one attack on our civil rights every six days (or four attacks on our civil rights for every five days President Trump has spent at a golf course).
But these many individual attacks on civil rights are only part of the damage being done. Both Trump’s policies and his hateful, dehumanizing language have emboldened others and contributed to an alarming rise in both hate crimes and domestic terrorism.
In this environment, is a giant step forward for LGBTQ+ civil rights really possible in 2020?
Yes and no.
Yes: A classic textualist argument
The legal question before the court in the three cases that will be heard tomorrow (Bostock v. Clayton County, Altitude Express v. Zarda, and Harris Funeral Home v. EEOC) is whether the prohibition on sex discrimination in Title VII of Civil Rights Act encompasses discrimination based on sexual orientation and/or gender identity.
The first two cases deal with sexual orientation, the third with gender identity. The argument that the law does cover LGB and T people is straightforward (ouch, pun not intended): If Donald is fired for being partnered with a man but would not be fired if he were a woman partnered with a man, then that is discrimination based on his sex. Similarly, if Amiee is fired from her long-time job after transitioning, i.e., her employer was fine with her when they thought she was a man but not when they realized she was a woman, then that is discrimination based on Aimee’s sex.
This understanding of the law owes much to the civil rights litigators who followed the logic of other Title VII cases, and developed the case law in this area over many years. As a result, courts have increasingly agreed that Title VII does protect LGBTQ+ people. The First, Second, Sixth, and Seventh Circuit federal appeals courts have all ruled in queer plaintiffs’ favor, while the Eleventh has ruled against gay and lesbian plaintiffs but for a transgender plaintiff.
This growing legal consensus is not what gives advocates their greatest hope for the cases now at the high court, however. Rather, it is the ascendancy of textualism as a judicial philosophy, and in particular the embrace of textualism by some of the most conservative justices, including both Gorsuch and Kavanaugh. Textualism is a method of statutory interpretation that centers the language and structure of a law’s text, and rejects other criteria like legislative intent.
The argument for queer inclusion in Title VII is classic textualist argument. The statute says an employer cannot discriminate because of sex; and as we saw in the examples of Donald and Aimee, discrimination based on sexual orientation or gender identity inherently takes account of sex. The discrimination is literally because of sex.
So, will the Heritage Foundation-certified justices walk the talk of their judicial philosophy? Or will they prove to be hypocrites whose allegiance to the Christian right is more important than principle? Your guess is as good as mine.
No: Loopholes are undoing civil rights law
Let us suppose that a majority of the justices will be persuaded to rule in favor of LGBTQ+ people in these cases. This would be a huge victory for civil rights.
But what would that victory mean in a country where bigotry is stoked from the highest office in the land on a daily basis?
In May, the federal Department of Health and Human Services issued a regulation — dubbed the “Denial of Care Rule” by opponents — that invites healthcare providers to deny care to people because of a personal religious or moral objection. It is obviously aimed at LGBTQ+ people, especially transgender people, and women seeking reproductive healthcare. (In the face of lawsuits, HHS has delayed implementation of the rule until next month.)
So come next year, I could theoretically be protected from getting fired, but then be denied life-saving medical care after getting hit by a car on my way home from work.
Seeking religious exemptions from civil rights laws has been the go-to strategy of the Christian right for some time now. Under the guise of the First Amendment, they claim a right to discriminate, maintaining that being forced to abide by non-discrimination statutes would violate their religion. In this Orwellian universe, anti-discrimination laws are discriminatory, and those insisting on denying rights to others are the ones who are persecuted.
If only this were dystopian fiction — but alas, it is increasingly reality, through regulations like the Denial or Care Rule, court decisions like Masterpiece Cakeshop, and laws like those allowing child welfare agencies to turn down LGBTQ+ kids or LGBTQ+ and non-Christian families ready to offer a loving home to a child.
These loopholes are undoing civil rights law.
Even worse: The entire edifice of civil rights law is in jeopardy
Civil rights are under attack at an even more elemental level in the federal judiciary. Trump has nominated and Senate Majority Leader Mitch McConnell has fast-tracked confirmation of record numbers of judges; one in five federal appeals court judges is now a Trump appointee. Many are ideologues, and hostile to civil rights in general. A significant number are virulently anti-LGBTQ+.
But perhaps the most worrisome sign is the trend of judicial nominees refusing, in their confirmation hearings, to affirm that Brown v. Board of Education was rightly decided. The 1954 landmark case, unanimously decided, ended legal segregation in America. It is the foundation — legally, politically, and morally — upon which the subsequent decades of civil rights struggle have been built.
What does it say about these judges that they refuse to say that decision was right? How will they rule on future civil rights cases? (Here’s one answer: In 2017, Trump judge Amy Coney Barrett voted to allow a business to racially segregate its workplaces.) And what does it say about the country that we are nominating such people to our courts?
The entire edifice on which U.S. civil rights law is built is in jeopardy; politically, if not legally.
It is readily apparent, but analytically important enough to spell out anyway, that the people in the U.S. who hate queer folks are the same people who hate Black folks, immigrants, Muslims and usually Jews, too, and women not content to be barefoot and pregnant. When LGBTQ+ advocates (read: white LGBTQ+ advocates) focus only on the prejudice aimed at queer people, they miss more than the chance to advocate for the full spectrum of queer communities and to stand in solidarity with other communities who are also discriminated against. They also misunderstand the white Christian nationalist project that binds together the separate attacks on our rights, and they underestimate what is at stake.
Homophobia and transphobia are Johnny-Come-Latelies on the American right’s agenda. This country is built on centuries of slavery and genocide. This is one reason, among many others, that the overwhelmingly white world of Big Gay needs to finally get serious about an intersectional analysis of oppression in the U.S. The biggest threat to queer rights, even narrowly understood, may well be white supremacy.
In the 2013 Supreme Court season, the gain for queer rights from the marriage equality victory in Windsor was undercut by the gutting of the Voting Rights Act the day before in Shelby County — not just because Black queer people would like to vote as well as get married, but more fundamentally, because Swiss cheese civil rights are inherently unstable for everyone. A victory in Bostock/Zarda/Harris Funeral Home would similarly be undercut in a political landscape in which Brown is no longer sacrosanct.
MLK long ago observed that “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny” (Letter from Birmingham Jail). Never has this fundamental truth been more obvious than right now.
