From left: Texas Attorney General Ken Paxton is a leader of the group arguing that existing civil rights law doesn't cover anti-LGBTQ discrimination, while the bigger, more diverse group of Democrats contending it does includes AGs Kwame Raoul of Illinois and Maura Healey of Massachusetts.
A group of Republican attorneys general last week filed a brief with the U.S. Supreme Court supporting anti-LGBTQ discrimination in upcoming cases — but they’re significantly outnumbered by the Democrats who filed a brief in July taking the opposite stance.
On October 8, the court will hear cases, now consolidated, involving two men who say they were fired for being gay, in addition to the case of a transgender woman who was fired after her transition. At issue is whether Title VII of the Civil Rights Act of 1964, in banning sex discrimination, also prohibits discrimination based on sexual orientation and gender identity.
Federal appellate courts have split on the interpretation of Title VII in these cases, which is likely why the Supreme Court agreed to hear them and decide the matter. In a case involving a New York skydiving instructor who said he was fired for being gay, although his employer asserted that was not the reason, the U.S. Court of Appeals for the Second Circuit ruled that Title VII applied to sexual orientation discrimination. In an antigay discrimination case involving a Georgia social worker, the Eleventh Circuit said it did not. In the transgender case, brought by a Michigan funeral director, the Sixth Circuit said the law did indeed apply to anti-trans discrimination.
The Republican AGs, led by such anti-LGBTQ notables as Ken Paxton of Texas and Doug Peterson of Nebraska, argue in their friend-of-the-court brief (a type of brief filed by a party not directly involved in the case) that Title VII does not extend to sexual orientation or gender identity, while they say they take no position on whether it should. When Congress passed the Civil Rights Act, it was adhering to the common understanding of the term “sex” as “biological status as male or female,” they write.
“Far from being synonymous with ‘sex,’ the terms ‘sexual orientation’ and ‘gender identity’ have long been used in contrast with ‘sex’ to mean something distinct,” the brief continues. Like many others arguing for a narrow interpretation of Title VII, including the Trump administration, they say that efforts in Congress to add sexual orientation and gender identity to federal nondiscrimination law prove that these characteristics are not covered by existing statutes. They add that it is the role of Congress, not the courts, to change the law, saying, “States are uniquely harmed when the Court impinges on Congress’s policymaking authority.”
The signatories to the brief are Republican officials from 15 states: Alabama, Alaska, Arkansas, Idaho, Kentucky, Louisiana, Missouri, Ohio, Oklahoma, South Carolina, South Dakota, Nebraska, Tennessee, Texas, and West Virginia. All are attorneys general, which is usually an elected post, except for M. Stephen Pitt, who is in an appointed position, general counsel to Kentucky’s Republican governor, Matt Bevin.
But a friend-of-the-court brief arguing for a more expansive reading of Title VII comes from Democratic AGs from 21 states and the District of Columbia. The 21 are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington State.
These states and D.C. represent a far greater population than those in the Republicans’ brief. They have a total population of slightly more than 140 million, while the 15 states represented in the Republican document have about 81 million.
The Democratic group is also much more diverse. The Democratic brief is signed by six women AGs: Kathy Jennings of Delaware, Clare Connors of Hawaii, Maura Healey of Massachusetts, Dana Nessel of Michigan, Letitia James of New York, and Ellen Rosenblum of Oregon. Healey and Nessel are both lesbians. There are five African-Americans: James, Karl Racine of D.C., Kwame Raoul of Illinois, Keith Ellison of Minnesota, and Aaron Ford of Nevada. California’s Xavier Becerra and New Mexico’s Hector Balderas are Latino, and William Tong of Connecticut and Gurbir Grewal of New Jersey are of Asian descent.
Among the Republican signatories, all the AGs and Kentucky’s general counsel are white, and only one of the AGs is a woman, Leslie Rutledge of Arkansas. The Kentucky AG happens to be a Democrat, Andy Beshear, the son of former Gov. Steve Beshear, which likely explains why Kentucky’s brief was signed by the governor’s counsel and not the attorney general.
The contrasting makeup of these groups certainly reflects differences in the parties, and so do the arguments put forth in their briefs. While the Republicans say their states would be harmed if the Supreme Court finds that Title VII covers discrimination based on sexual orientation and gender identity, the Democrats say their states would suffer harm if it does not. Anti-LGBTQ discrimination is what does the harm, they say.
Their states, they write, “are harmed by such discrimination in three key ways. First, invidious discrimination against LGBT workers impedes the States’ ability to foster welcoming communities, promote equality, and protect their residents’ dignity, economic security, and mental health. Second, the denial of economic opportunities to workers based on their sexual orientation or transgender status needlessly causes many of them to rely on public assistance programs that directly cost the States millions of dollars each year. Third, the States suffer indirect injuries from discrimination against LGBT workers because such discrimination decreases business productivity and increases health costs, thereby inhibiting economic growth and reducing tax revenues.”
The Republicans’ brief, on the other hand, contends that “judicial rewriting that extends a statute beyond its plain language to regulate to a greater degree than Congress intended could impede state policymaking efforts, which are likely to be more responsive to local interests and concerns than a federal solution.” The Democrats, however, say a federal solution is needed because many LGBTQ workers live in states without inclusive antidiscrimination laws.
Some prominent Republicans — albeit none who currently hold office — have advocated for a federal solution as well. More than 30, including former members of Congress, signed on to a brief filed in these cases in July, arguing that a conservative reading of Title VII actually bolsters the argument that it bans anti-LGBTQ discrimination. They quote from a book coauthored by a conservative icon, the late Supreme Court Justice Antonin Scalia, saying, “The text [of a law] plainly applies or does not apply by its very words,” even if the legislators who crafted the law did not foresee a “particular circumstance” in which it would apply.
The gay men in these cases, the brief says, suffered discrimination because they are men attracted to men; women attracted to men would not receive the same treatment. They add that the trans woman was fired “for representing herself as the woman she understood herself to be,” and that her dismissal happened because she was assigned male at birth and would not have happened if she had been assigned female at birth.
These briefs are among many the court will consider, along with the parties’ oral and written arguments, when it makes a decision. Those who filed friend-of-the-court briefs in support of the employees, which were due in early July, include almost every imaginable LGBTQ and general civil rights organization, health care groups led by the American Medical Association, currently serving Democratic members of Congress, major corporations, and a variety of faith bodies — Christian, Jewish, and Muslim.
Those supporting the employers, who had last week as a deadline, include many of the usual anti-LGBTQ suspects: Liberty Counsel, the National Organization for Marriage, First Liberty Institute, the Billy Graham Evangelistic Association, and the Foundation for Moral Law. Many of these are faith-based and have a conservative Protestant bent, but the U.S. Conference of Catholic Bishops and some Muslim leaders filed briefs as well.
A group of current Republican members of the U.S. House and Senate filed a brief too, and it includes some infamous homophobes like Reps. Louie Gohmert and Steve King, but is missing some big names — where’s Sen. Ted Cruz? One of their lawyers is Ken Starr, who conducted the investigation that led to the impeachment of President Bill Clinton. That brief is fairly measured in its language, although it does make the tired argument women’s rights and children’s safety might be undermined by defining sex to include gender identity and sexual orientation.
There’s no holding back, though, in a brief led by Public Advocate of the United States, which despite the name is not a government entity. Joined by other far-right groups such as the Eagle Forum Foundation, Public Advocate argues that outlawing sexual orientation discrimination would mean employers couldn’t discriminate against pedophiles and other predators. This “would weaponize Title VII, arming the Harvey Weinsteins of the world with a sex discrimination claim with which to counter the #MeToo movement against sexual predators in the workplace.”
They should be reminded that Eagle Forum’s founder, the late Phyllis Schlafly, famously said that virtuous women need not fear sexual harassment. And one can hope the high court won’t take this “slippery slope” argument seriously.
The court’s decision is expected in June of next year.