The Human Cost of the Law: LGBTQ+ Employment Discrimination at the Supreme Court

Today, in what will surely be one of the most discussed days of the 2019 term, the Supreme Court is hearing oral arguments in three cases concerning the scope of Title VII’s prohibition against workplace discrimination “because of the individual’s . . . sex.” (42 U.S. Code § 2000e–2(a)(1-2). At issue is whether the words “because of the individual’s sex” address not only disparate treatment based on hostility toward an employee’s sex-assigned-at-birth, but also an employee’s gender identity (R.G. & G.R. Harris Funeral Homes v. EEOC) and sexual orientation (Bostock v. Clayton County and Altitude Express, Inc. v. Zarda).

The potential fallout from these cases cannot be overstated. Losing federal-level workplace protections for LGBTQ+ Americans would be utterly disastrous. As it now stands, twenty-one states and the District of Columbia have laws on the books safeguarding employees from discrimination based on both sexual orientation and gender identity; a further three states have outlawed one or the other, but not both. That leaves twenty-six states with no state-level safeguards whatsoever for LGBTQ+ workers. And those twenty-six states account for 44 percent of the American population—some 144 million individuals. In these jurisdictions, an LGBTQ+ worker who’s been victimized by their employer for the crime of being themselves has only one possible recourse: the federal court system. At least for now.

As a lawyer, I cannot help but seethe with anger whenever an issue like this reaches the Supreme Court, for a couple of reasons.

The first is simply that one side so obviously has the better argument that it’s absurd that it’s come to this: of course Title VII of the Civil Rights Act of 1964 covers sexual orientation and gender identity. It has to. To decide otherwise is to mangle the plain meaning of the words “because of the individual’s sex.”

A very simple way to demonstrate this is to take the same exact conduct—let’s say, “having sexual attraction to women”—and apply it to two hypothetical workers: one woman and one man. Both are sexually attracted to women, and both make it known that they are in committed relationships with women. All is well until their bigoted boss catches wind of this. The boss doesn’t think women should be in romantic relationships with other women, so he fires our LGBQT+ worker. Meanwhile, our non-LGBTQ+ worker keeps his job. In what world can we say that the LGBTQ+ worker was not fired because of her sex? Of course she was. She was fired because her employer doesn’t believe that women should be in romantic relationships with other women. If she’d been male, she would not have been fired for doing the exact same thing. Likewise for gender identity. If the conduct at issue was instead “dressing in a manner traditionally associated with women,” a woman wearing a dress around the office will face no adverse action, whereas if a trans woman who was assigned male at birth does likewise they will face discrimination.

In both cases, the conduct at issue is the same for the LGBTQ+ worker and the non-LGBTQ+ worker. In both cases, the LGBTQ+ worker’s failure to conform to stereotypes associated with their sex-assigned-at-birth is the motivating factor behind their termination. In both cases, we have blatant discrimination on the basis of sex. Full stop.

If this sounds like sophistry, it’s not. Take it from the Supreme Court itself. Thirty years ago, the Court ruled in Price Waterhouse v. Hopkins that discrimination “because of the individual’s sex” includes not just the obvious evils that Title VII was designed to thwart back in 1964—sexual harassment, misogynist insults, refusal to promote women, etc. —but also discrimination based on a failure to conform to stereotypes associated with one’s sex-assigned-at-birth. Justice Brennan declared that, “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Whatever particular problems Congress sought to fix when it passed Title VII, it is clear that “’[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”

So that’s one reason I’m an angry lawyer: the correct result is not only obvious and firmly rooted in past decisions, it’s also an argument that should, in a just world, appeal to conservative judges who have long prided themselves on strict obedience to “textualism,” the judicial philosophy that laws should be interpreted by considering only the words used in the law as they are commonly understood. This should be a slam-dunk case; it’s madness to me that we have judicial disagreement on this issue. Nonetheless, here we are. All we can do now is hope that reason will prevail.

The other reason I’m angry has less to do with law and more to do with lawyers. Yesterday, as I was gathering my thoughts on what to say about these cases, I found myself idly flipping through a copy of the Jefferson Bible that I keep on my desk. After skimming through the Sermon on the Mount and the parables, I happened across a line I’m sure I’ve read before but that never left me as cold as it did then: “And he said, ‘Woe unto you also, ye lawyers! For ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers.’” (For those of you with standard-issue Bibles, that would be Luke 11:46).

We lawyers have long held a reputation for lacking compassion, which is not wholly unearned. Our job necessarily entails a certain emotional distance. We have to be disconnected, dispassionate, and disinterested if we are to give the most reasonable and pragmatic legal advice in any given situation. That’s a good thing. But there’s a dark side to detachment: all too often, we forget the human cost of what we do. We forget that real people—fellow human beings with lives, loves, and liberties to protect—are directly impacted by what we can get a judge to say in an opinion.

I found myself unable to stop thinking of that massive number: 144 million.

One hundred and forty-four million people, across every demographic you can imagine, all just trying to get by like the rest of us. One hundred and forty-four million people who ask nothing more than to be allowed to live as their true selves without fear of reprisal. One hundred and forty-four million human beings who could find themselves without any hope of a remedy if these cases come down the wrong way. One hundred and forty-four million of my fellow Americans.

We lawyers can never forget the human cost of the law. Behind every brief, every motion, every oral argument, and ultimately every judicial opinion, there is a flesh-and-blood person whose very life and livelihood may rest on the outcome of the case.

Let’s hope against hope that the nine lawyers who have been elevated to our nation’s highest court haven’t forgotten the human cost of the law. Let’s hope they can be better than the lawyers that Jesus decried, those callous casuists who avert their eyes and ears from the real-life consequences of litigation. Let’s hope that these nine lawyers have the courage to touch the burden of the 144 million and to lift it from their shoulders. Let’s hope.