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Kavanaugh Slams Ruling, Alito Compares Same-Sex Desire to Rape

Brett Kavanaugh and Samuel Alito

While giving lip service to the idea that it’s desirable to ban employment discrimination against LGBTQ+ people, the Supreme Court justices who dissented from today’s ruling used homophobic, transphobic, and misogynistic arguments. 

They included arguments against trans people’s access to preferred restrooms, put forth the idea that sex discrimination and sexual orientation discrimination have nothing in common, and even raised the possibility that an expansive definition of sex discrimination could protect rapists.

In the 6-3 ruling, the court’s majority found that Title VII of the Civil Rights Act of 1964, in banning sex discrimination, also bans discrimination based on sexual orientation and gender identity. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Justice Neil Gorsuch wrote for the majority.

Gorsuch, Donald Trump’s first Supreme Court appointee, is considered a conservative, but his line of questioning when the court heard arguments in the case made led many observers to see him as the unpredictable factor in the case. He was joined in the ruling by Chief Justice John Roberts, a conservative appointed by President George W. Bush, and the court’s four liberals — Ruth Bader Ginsburg and Stephen Breyer, both appointed by President Bill Clinton, and Elena Kagan and Sonia Sotomayor, both appointed by President Barack Obama.

Gorsuch based his opinion on a concept endorsed by many conservative jurists — that the interpretation of a law should be based on its text and no other considerations. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” he wrote.

Justices Samuel Alito, who wrote a dissent in which he was joined by Clarence Thomas, and Brett Kavanaugh, who wrote a separate dissent, differed with Gorsuch, contending he was actually legislating from the bench. Alito and Kavanaugh both asserted they opposed discrimination against LGBTQ+ people, but said action to ban such discrimination should be taken by Congress and not the courts. Nonetheless, they made some eyebrow-raising statements.

Alito, a George W. Bush appointee, brought up the idea that an expansive reading of the term “sex” could lead to antidiscrimination protections for rapists. He included several dictionary definitions of “sex,” mentioning that some refer to “the sexual urge or instinct.”

“Since both of these come after three prior definitions that refer to men and women, they are most naturally read to have the same association, and in any event, is it plausible that Title VII prohibits discrimination based on any sexual urge or instinct and its manifestations? The urge to rape?” Alito wrote.

Alito also warned of “consequences” of the ruling, and he used some widely discredited arguments, such as the idea that allowing trans people access to their preferred restrooms and locker rooms will enable sexual predators. Today’s ruling does not address restroom access — it deals with employment only — but Alito worried about future changes to laws affecting LGBTQ+ people.

“As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety,” he wrote. “No one should think that the Court’s decision represents an unalloyed victory for individual liberty.”

“The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex,” he continued. “For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.” (He ignored the fact that there are usually private stalls in women’s public restrooms and that there are often privacy provisions in locker rooms.)

Alito also asserted that today’s ruling will give support to the case that trans women and girls should be allowed to compete in sports with their cisgender female peers — something embraced by most LGBTQ+ rights advocates. But he contended that this would be a bad thing and that trans females have an inherent advantage over cis females, although there are many who say there is no inherent advantage. The justice additionally found it objectionable that school personnel may be forced to use trans students’ preferred names and pronouns.

Additionally, he raised the possibility that religious schools could no longer discriminate against LGBTQ+ teachers and staff, and he looked askance at this. “If a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment,” Alito wrote. “Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment.” (Some religious schools have argued that teachers are performing “ministerial” duties and have sought to justify such discrimination through an exemption for ministers under civil rights law.)

He also raised concerns about health care companies being forced to provide procedures that violate their religious beliefs, or a religious employer being forced to cover them through health insurance.

Kavanaugh, Trump’s second Supreme Court appointee — who, during his confirmation hearings, faced accusations of sexual assault — objected to the idea that sex discrimination and sexual orientation discrimination have anything in common (even though misogyny and homophobia often go hand in hand).

“Seneca Falls was not Stonewall,” he wrote, referring to the 1848 women’s rights convention and the 1969 LGBTQ+ uprising, respectively. “The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”

“Most everyone familiar with the use of the English language in America understands that the ordinary meaning of sexual orientation discrimination is distinct from the ordinary meaning of sex discrimination,” Kavanugh continued. “Federal law distinguishes the two. State law distinguishes the two. This Court’s cases distinguish the two. Statistics on discrimination distinguish the two. History distinguishes the two. Psychology distinguishes the two. Sociology distinguishes the two. Human resources departments all over America distinguish the two. Sports leagues distinguish the two. Political groups distinguish the two. Advocacy groups distinguish the two. Common parlance distinguishes the two. Common sense distinguishes the two. As a result, many Americans will not buy the novel interpretation unearthed and advanced by the Court today.”

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