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Supreme Court hears arguments in LGBT discrimination case

The Supreme Court of the United States recently heard intense arguments about whether the 1964 Civil Rights Act bars employment discrimination based on sexual orientation and transgender status. In the minds of most court observers, the presence on the Court of five solidly conservative justices has predetermined the outcome, but Justice Neil Gorsuch asked questions that indicated that he may not have made up his mind.

Title VII of the 1964 Civil Rights Act outlaws discrimination based upon race, religion, national origin, and, notably, sex. The justices must decide how to interpret the last term.

Justice Gorsuch is a staunch "textualist," that is, he believes that statutes and the Constitution must be interpreted based only upon their text, without reference to extraneous evidence. At the oral argument, Justice Gorsuch asked questions and made suggestions indicating that, in his mind, the 1964 law may well bar discrimination based upon sexual orientation or transgender status. At one point, he said that the question was "really close, really close."

The Court is considering two cases seeking relief under Title VII. One involves two gay men who claim to have been fired because of their sexual orientation. The second involves a transgender woman who alleges that she was fired when she said that she wanted to embrace her gender identity on the job.

The remaining eight justices appeared to ask questions that were consistent with the Court's present 5-4 conservative/liberal split. Justice Kagan said that the text of the statute was clear and that it protected the two gay male plaintiffs. Justice Alito, on the other hand, said that a decision in favor of the plaintiffs in either case would mean that the Court is acting just like a legislature.

Whatever the decision, it will undoubtedly affect many thousands of employers and perhaps millions of workers.

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