With this Pride month comes a groundbreaking rule from the Supreme Court of the US, outlining the breach of civil rights laws when employers terminate workers on the basis of them being gay or transgender. The 6-3 decision entails the inclusion of sexual orientation and gender identity within the 1964 Civil Rights Act.
The Trump administration sides with employers who argued this Act was not tailored to cases regarding orientation and gender identity.  Title VII of the Civil Rights Act of 1964 means that it is illegal for an employer to discriminate “because of” an “individual’s race, color, religion, sex or national origin.” However, Judge Gorsuch opposed the claim of these rights not being extended to transgender and homosexual individuals, deciding: “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”. He clarified that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
 According to the Obama administration, the federal Equal Employment Opportunity Commission that enforces the anti-discrimination law, said all persons regardless of orientation and identity are included. But on the 15th of June, 2020, the Trump Administration took two steps backwards with its rollback of protection for transgender people in healthcare, education and other sectors. Under the Affordable Care Act widely known as Obamacare, it would have been illegal in 2016 for healthcare professionals to discriminate against anyone because of their race, sexual orientation, gender identity, disability, age or colour. The current administration has subjectively decided the use of ‘sex discrimination’ does not explicitly refer to the legal status of transgender people, thus healthcare providers can refuse treatment to transgender patients on the basis of their identity.
Alongside the major ruling in legal support of transgender rights, are the ways in which the standing law is interpreted. The New Criticism is a movement of literature that focuses upon close analysis of words and the manner in which the text is written, only disregarding contextual information such as politics, the writer’s intentions or feelings, in order to understand the true meaning and intention behind any writing. Salvatore Eugene Scalia advocated for this means of understanding texts to adopt ‘literalness’ and to avoid ‘yielding to the temptation’ to follow one’s own understanding and assertion, of what should be said rather than what is actually said. His son, Judge Antonin Scalia, was appointed to the Supreme Court and became a key individual in the New Criticism movement, who heavily supported textualism. This is the influential method of interpreting the law, wherein “the text is the law, and it is the text that must be observed,” regardless of what lawmakers may have intended when passing the law. Previously, textualism was most popular amongst conservative judges but through the years it has become prominent amongst liberal judges.
In this particular case, Justice Gorsuch based his favourable decision on the perfectly textualist interpretation of the Civil Rights Act as he felt “only the words on the page constitute the law adopted by Congress and approved by the President,” not “extra-textual sources and our own imaginations.” Therefore, an ‘individual’s…sex’ is not independent of gender identity and sexual orientation, purely portrayed through the structure and wording of the legislature.
The three judges who opposed the ruling, namely Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh, were against the interpretation made by Gorsuch as they felt he stretched and moulded the law to contemporary status, using textualism as a tool to undermine the original meaning of the writing. Alito felt the textualist school of thought is being wrangled amongst this rule, further supported by Thomas. They believe Scalia would have been scornful of the way in which old statutes are being updated to uphold contemporary values. Americans reading the law in 1964 “would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity,” which the judges stood by, understanding it is unlawful to twist prior intentions to the current political and social climate. At the time, homosexuality was deemed a mental disorder or a crime and it would have been unlikely that they meant for it to be as inclusive as it is today. The minority comprising of these three judges were particularly concerned by the abuse of their authority as judges, when they are not even condidered lawmakers in this context, as they stand only to make decisions based on standing law.
The dynamic nature of the law, with the tools of previous influences such as textualism, has moved to protect vulnerable minorities which is particularly important in this pandemic and poses a defence towards the oppressive nature of the Trump administration. Transgender rights are at a constant battle between pushing into the future and being pulled back into old-fashioned ideals and the Supreme Court has given its authoritative opinion on the matter, with this landmark rule.
- Jeannie Suk Gersen- Could the Supreme Court’s Landmark L.G.B.T.-Rights Decision Help Lead to the Dismantling of Affirmative Action?- The New Yorker- June 27 2020
- US Supreme Court backs protection for LGBT workers- BBC News- 15 June 2020