Shadow of Gorsuch nomination hangs over LGBTQ-rights ruling

Yesterday, in a landmark opinion, the United States Court of Appeals for the Seventh Circuit ruled that employers can be sued for discriminating against employees because of their sexual orientation. But this laudable ruling, which most likely sets the stage for a future Supreme Court showdown, comes as the Supreme Court seems poised to add a new and ultraconservative justice to its ranks: Neil Gorsuch.

Writing for the court in Hively v. Ivy Tech Community College of Indiana, Chief Judge Diane Wood concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination” and, therefore, unlawful under Title VII of the Civil Rights Act of 1964 (the civil rights statute that protects against discrimination in the workplace based on “race, color, religion, sex, or national origin”). Chief Judge Wood’s opinion was joined by seven members of the eleven-judge panel. Of the eight judges in the majority, Republican presidents appointed five. Judge Diane Sykes, who was on President Trump’s short list for potential nominees to the Supreme Court, dissented.

Chief Judge Wood’s opinion eloquently made the case that Hively, who identifies as a lesbian and had been passed over for promotion and was ultimately fired, had a cognizable claim under Title VII. Pointing out that the Supreme Court has long recognized that gender stereotyping is impermissible under Title VII, Chief Judge Wood explained that “Hively represents the ultimate case of failure to conform to the female stereotype (at least understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.” Accordingly, Chief Judge Wood continued, “Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces” where “[t]he employers . . . were policing the boundaries of what jobs or behaviors they found acceptable for a woman.” Thus, applying the logic of Supreme Court precedent, Chief Judge Wood concluded that “[a]ny discomfort, disapproval, or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”

The Seventh Circuit’s decision will likely lead the Supreme Court to consider the issue, because every other appeals court to have ruled on the issue has concluded that lesbian or gay employees are not protected from sexual-orientation discrimination in the workplace. As recently as last month, the Eleventh Circuit and the Second Circuit reaffirmed their positions that sexual-orientation discrimination in the workplace is not unlawful.

With a Supreme Court battle over protections for gay and lesbian workers looming, the confirmation fight over Judge Neil Gorsuch to fill a seat on the high Court has taken on new significance. Now, it is almost inevitable that Judge Gorsuch, if confirmed, will have the opportunity to join in resolving the circuit split and weigh in on whether gay and lesbian workers deserve the same rights and protections in the workplace—the basic American ideal that employees should be judged on their skills and abilities and have an equal opportunity to achieve the American dream. His record shows that he likely will conclude that they do not.

Judge Gorsuch has frequently expressed skepticism, if not outright hostility, to the rights of LGBTQ persons. He has criticized LGBTQ advocates for turning to the court to vindicate their constitutional rights, saying that it is more appropriate for them to wait for a hostile electorate to change its attitude. Judge Gorsuch has also articulated an exceptionally broad understanding of religious liberty, which has been invoked as a license to discriminate against the LGBTQ community. And, at his Senate confirmation hearing, Judge Gorsuch refused to answer questions about whether he believed that seminal LGBTQ-rights cases like Romer (striking down state Constitutional amendment that prevented passage of LGBTQ protections); Lawrence (striking down anti-sodomy laws), and Obergefell (recognizing marriage equality) were rightly decided.

Moreover, Judge Gorsuch has repeatedly endorsed an application of originalist ideology that, while neutral on its face, has been used to defeat efforts by LGBTQ individuals to vindicate their rights. In fact, the same originalist ideology endorsed by Judge Gorsuch at his confirmation hearing was used by Judge Sykes in her dissent in Hively to argue that Title VII afforded no protection to lesbian and gay workers who faced discrimination. According to Judge Sykes, statutory language must be interpreted as it would have been understood by “a reasonable person at the time of enactment.” Thus, she concludes, Title VII does not protect against sexual-orientation discrimination, because it is not “even remotely plausible that in 1964, when Title VII was adopted, a reasonable person competent in the English language would have understood that a law banning employment discrimination ‘because of sex’ also banned discrimination because of sexual orientation[.]” Judge Sykes concludes that it is up to Congress, not the judiciary, to amend Title VII to protect LGBTQ Americans.

Sound familiar? When questioned about his philosophy of statutory interpretation during his confirmation hearing, Judge Gorsuch replied that words in statutes “have a fixed meaning” and should be interpreted as “a reasonable person would’ve understood them to mean” at the time of enactment. Moreover, he repeated the refrain that if people are dissatisfied with this narrow and anachronistic form of judicial interpretation, Congress can simply pass a new law.

It is not hard to guess how Judge Gorsuch would rule on the issue decided by the Seventh Circuit in Hively. Undoubtedly, he would join his fellow Trump short-lister Judge Sykes, in concluding that Title VII does not protect equal rights for lesbian and gay workers. If he is confirmed, Judge Gorsuch’s dangerous method of statutory interpretation and history of turning a blind eye to the discrimination faced by LGBTQ Americans will have a place on the Supreme Court, and the equal rights of millions of Americans will suffer.