The Back Story

By now I think that everyone knows about the Supreme Court verdict on Title VII of the Civil Rights Act earlier this month, well this is about what went on behind the closed doors.

EXCLUSIVE: Anger, leaks and tensions at the Supreme Court during the LGBTQ rights case

CNN

By Joan Biskupic,

July 28, 2020

When the Supreme Court extended the 1964 Civil Rights Act to gay and lesbian workers in a landmark June ruling, the justices also protected transgender employees.

But the case did not start out that way. In their private conference room in October with only the nine and no law clerks, the justices debated whether and how to provide the same anti-bias coverage for 1 million transgender workers, according to multiple sources familiar with the inner workings of the court.

Some justices raised concerns related to religious interests and shared bathrooms, the sources said. But even with their differences and some hedging, the die was cast in that private session for the ultimate 6-3 decision that emerged in June.

That early vote, supported by Chief Justice John Roberts and Justice Neil Gorsuch, and the wrangling that eventually led to a broad decision in the groundbreaking case are among the new details in CNN's exclusive four-part series on the Supreme Court's historic 2019-2020 term.

We were about to be thrown under the bus, they agreed on that the law covered lesbians and gays however they were ready to drop us…

In those cases, a majority of justices agreed early on that Title VII of the Civil Rights Act, which prohibits bias "because of" sex, must include gay and lesbian workers who face discrimination based on sexual orientation. But the justices hesitated on whether Title VII applied, in the same way, to transgender individuals, according to the sources.

[…]

But once Roberts assigned the cases to Gorsuch and he, as expected, zeroed in on the text of Title VII's ban on discrimination "because of ... sex," the majority readily signed on to the opinion declaring that both sexual orientation and gender identity would be covered.

[…]

"If he were a woman, he wouldn't have been fired," Kagan said. "This is the usual kind of way in which we interpret statutes now. We look to laws. We don't look to predictions. We don't look to desires. We don't look to wishes. We look to laws."

[…]

As the justices in the majority began working out how to construe the reach of Title VII's plain-language protections against sex discrimination, they had to address how it applied to gay as well as transgender workers, specifically Stephens, who had been fired from her job in Michigan. When the 6^th US Circuit Court of Appeals had ruled for Stephens, it said discrimination based on transgender identity is inherently sex discrimination under Title VII.

During oral arguments, Roberts had questioned how an employer would set policies for shared bathrooms for "a transgender man transitioning to a woman."

[…]

The six-justice majority held to its view that Title VII covered gay and transgender workers without exception. None of the liberal justices nor Roberts was writing a separate opinion, as often happens in contentious cases. Here, the majority would speak with one voice: Gorsuch's.

The early concerns some justices had about sex-segregated bathrooms or locker rooms were addressed and dismissed with only a few lines.

"(W)e do not purport to address bathrooms, locker room, or anything else of the kind," Gorsuch wrote.

Thus we were written into the court’s ruling protecting us under Title VII.

I urge you to read the whole article it is fascinating to see how their deliberations lead to including us.