The argument puts the administration at odds with its own Equal Employment Opportunity Commission, which has concluded that Title VII — which forbids many employment actions taken “because of” a person’s “sex” — does protect against discrimination based on sexual orientation.
The solicitor general, which has final authority for representing the administration in the Supreme Court, essentially kicked the EEOC to the curb. Given the high political profile of the case and the issue, the decision likely was made with the input of the White House and with an eye toward its impact on President Trump’s reelection prospects.
Bostock and Altitude Express are two of three cases concerning gay and transgender rights that the Supreme Court will hear Oct. 8 and decide no later than June.
The administration’s legal position in the Bostock cases is by no means beyond the pale. In the years following the 1964 passage of Title VII, the courts of appeals consistently held that the act’s prohibition of discrimination “because of … sex” did not cover sexual orientation. Congress, moreover, repeatedly rebuffed efforts to add sexual orientation to the list of covered traits in the act.
On the other hand, in 2015 the EEOC adopted the contrary position, and in 2017 the U.S. Court of Appeals for the 7th Circuit followed suit. And now in Altitude Express, one of the two cases before the court, the full 2nd Circuit likewise held that the statutory term “sex” properly understood extends to sexual orientation.
The 2nd Circuit reasoned that sexual orientation is a function of sex and that plaintiff Donald Zarda, a gay man, would not have been subject to the same discrimination were he a woman. Thus, the court reasoned, the discrimination was because of his sex or gender.
Indeed, the administration’s position puts it at odds with the practices of its own Justice Department, which recently under Attorney General William P. Barr confirmed the prohibition on denial of equal employment opportunity because of sexual orientation. (In a separate filing in R.G. and G.R. Harris Funeral Homes Inc. v. EEOC, also set for an Oct. 8 argument, the solicitor general is at direct odds with the administration’s EEOC, siding with a funeral home that fired an employee once it learned he intended to change his gender. The brief argues that Title VII does not bar discrimination against transgender people.)
The administration’s forceful entry into the fray in Bostock and Altitude Express was entirely voluntary, as was its legal position. It is not a party in either case. It charged in as a “friend of the court” seeking to have its views heard and asking to participate in the oral argument.
The policy position permitting discrimination on the basis of sexual orientation contradicts a strong social consensus that has developed in recent years affirming the irrationality and unjustness of unequal treatment of gay people. But it pleases a portion of the Trump base, including some evangelical Christian voters who not only disagree but also assert a religious duty to proselytize against homosexuality. More than three-quarters of such voters continue to support the president.
Meanwhile, the court has received nearly 70 briefs — an extraordinary number — from outside groups and parties, an indication of the passionate interest the cases generate on all sides.
The upshot is that the administration has voluntarily jumped in with both feet in favor of intolerance when it easily could have remained on the sidelines. The political gesture fit comfortably with the president’s own history of subtle, and not-so-subtle, support for prejudice and xenophobia.
Whether the administration will find a welcome reception from the conservative majority it has helped put on the Supreme Court is difficult to predict.
Bostock and Altitude Express already have proved vexing to the court, which considered the joint cases no fewer than 11 times in separate conferences before finally opting to hear them.
And apart from going against the social grain, the Trump administration’s position is at least arguably at odds with the interpretive approach to Title VII adopted by the late Justice Antonin Scalia in a previous unanimous opinion for the court.
Finally, Chief Justice John G. Roberts Jr. surely is aware that adopting the administration’s view of Title VII would widely be taken, fairly or not, to signal a reactionary retrenchment in the wake of the replacement of Justice Anthony M. Kennedy, known as the court’s foremost protector of gay rights, with Justice Brett M. Kavanaugh. For the same reason, Kavanaugh probably would not relish providing the fifth vote for a decision that, in policy if not legal terms, would put him on the wrong side of history.
And whenever the decision comes down — probably no earlier than January and certainly no later than June — it will blast into the heart of a presidential campaign focused intensely on culture-war issues and the direction of the Supreme Court itself. High drama at the high court.