Tags: Supreme Court | lgbtq | transgender | gay | lesbian

SCOTUS Almost Punted Transgender Rights in LGBTQ Decision

the supreme court justices are seen in their black robes
(AP)

By    |   Tuesday, 28 July 2020 10:15 AM

When the Supreme Court ruled 6-3 that the Civil Right Acts applied to gay and lesbian workers earlier this summer, the decision extended protections to transgender employees as well.

But, according to CNN, the justices debated behind the scenes whether to provide the same protections to 1 million transgender workers.

Sources familiar with the topic told CNN that the nine justices gathered in their private conference room back in October to discuss the topic. They met without any law clerks and debated privately. 

Sources said some justices raised concerns about religious interests and shared bathrooms. 

Ultimately, the majority opted to extend the same anti-bias protections to gay, lesbian and transgender workers. Per the ruling, employers are barred from denying jobs or promotions to gay, lesbian and transgender workers.

According to CNN, the justices first voted to affirm a lower court ruling that sided with a gay man who was fired him his job as a skydiving teacher in New York. The justices also reversed a lower court decision against a gay man who was removed from his post as a county child-services coordinator in Georgia.

When it came to addressing a case involving a transgender woman, who was fighting her firing at a Michigan funeral home, the justices were divided, according to CNN.  

There was conflicting opinion on whether sexual orientation and gender identity cases would be treated the same under the law. Some justices wanted the transgender case returned to a lower court for further hearings, which would have put off the question of transgender rights.

It was Justice Neil Gorsuch who focused on applying the text of Title VII's ban on discrimination "because of ... sex," that allowed both sexual orientation and gender identity to be covered in the decision, according to CNN. 

Gorsuch’s textual basis is what helped sway Chief Justice John Roberts to side in favor of extending the rights, according to CNN.

News that two conservative judges, Roberts and Gorsuch, were siding with the four liberal judges leaked last fall. 

When that happened, CNN reports that Elena Kagan was in touch with Gorsuch, who was writing the majority opinion, according to sources. 

Sources also said it was Kagan who helped persuade Roberts the most. 

Gorsuch finished his first draft in February and CNN reports that Kagan signaled support right away. Then, the other three liberal judges Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor signed on to Gorsuch’s approach. Roberts was also on board. The quick agreement was not previously known, according to CNN. 

After reaching Gorsuch’s opinion, Samuel Alito got to work on his dissent. Justices Clarence Thomas and Brett Kavanaugh also disagreed with Gorsuch.

CNN reports that Thomas was the only one who tried to convince Gorsuch he was not interpreting the text through a conservative lens. 

Alito’s draft was finished in April, according to CNN. The two sides then debated via drafts. 

Thomas signed on to Alito's dissenting opinion. But Brett Kavanaugh took his own approach. Sources say he was uneasy about Alito’s approach so he wrote his own dissenting statement. 

The six justices in the majority issued one opinion through Gorsuch.

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When the Supreme Court ruled 6-3 that the Civil Right Acts applied to gay and lesbian workers earlier this summer, the decision extended protections to transgender employees as well.
lgbtq, transgender, gay, lesbian
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2020-15-28
Tuesday, 28 July 2020 10:15 AM
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