The Obama administration changed the government’s position on anti-discrimination law, arguing that the ban on discrimination based on gender already banned discrimination against LGBT people. Other government levels adopted that position and lawsuits were filed based on that interpretation. The Supreme Court will hear three cases based on that interpretation in their next term starting in October.
The cases involve a transgender funeral home director who won her case after being terminated; a gay skydiving instructor who successfully challenged his firing; and a social worker who was unable to convince a court that he was unlawfully dismissed because of his sexual orientation.All share a common question: whether Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, is broad enough to encompass discrimination based on gender identity or sexual orientation.
They will be the Supreme Court’s first major gay rights cases without Justice Anthony M. Kennedy, who was the deciding vote and wrote the majority opinions in all of the landmark victories for gay rights, including the right to marriage in 2015’s Obergefell v. Hodges.
I am not hopeful about the outcome of the case. I expect a 5-4 ruling that this interpretation is wrong, based primarily on an originalist reading of the origins of the law. And they’ll be right that the framers of that law did not intend for the ban on sex discrimination to apply to LGBT discrimination. I’ll be very shocked if the outcome is otherwise.