From today’s NPR News Online:
The retirement of Supreme Court Justice Anthony Kennedy loomed large over arguments at the court Tuesday in a set of cases testing whether employers are free to fire gay and transgender employees. Kennedy, a Reagan appointee, was the author of every major gay rights decision for more than two decades. His absence, and the presence of two new Trump appointees, could very well determine how these cases are decided, who wins, and who loses.
Justice Brett Kavanaugh, who replaced Kennedy, asked only one question during two hours of argument Tuesday. Instead, it was Justice Neil Gorsuch, the other Trump appointee, who was the focal point.
Gorsuch, an adamant advocate for reading the text of a statute literally, admitted to a bit of a conundrum. Addressing ACLU lawyer David Cole, he said, “Assume for the moment … I’m with you on the textual evidence,” but “it’s close … very close.” The words of Title VII of the 1964 Civil Rights Act bar employment discrimination “because of sex,” or “based on sex.”
Gorsuch seemed to be agreeing that language would appear to cover gay and transgender employees. But, he then asked whether a justice should “take into consideration the massive social upheaval that would” ensue from such a decision. Wouldn’t it be better to let Congress do it?
Cole replied that federal courts have been finding it illegal to discriminate against transgender employees for 20 years, and “there’s been no upheaval.” Dress codes and sex-segregated restrooms “have not fallen,” he observed, adding there has been no tumult.
Read the complete article here.