Looked at superficially, as many do in the Age of Trump when politics is carried out in fewer than 140 characters, one could imagine that the LGBTQ community has recently suffered onerous setbacks in court.
Beginning with the Hively v. Ivy Tech Community College decision out of the 7th Circuit a month ago, where a three judge panel affirmed the lower court decision that employment discrimination against lesbians was not protected by Title VII, and continuing on through August with a federal district court ruling against a trans woman represented by the Equal Employment Opportunity Commission (EEOC) in Michigan, a preliminary injunction against the Department of Education's guidance on trans Title IX rights in schools, and the most recent attempt to carve out a Hobby Lobby religious exemption to permit anti-trans discrimination in health care, the news has all been bad. Bad if you just read the headlines, and skip the decisions themselves and the back stories. Or, unfortunately, if you read some of the analysis in leading cultural magazines such as The Atlantic.
In The Atlantic Emma Green wrote a remarkably negatively-toned essay about the state of legal affairs in general, but clearly tainted both by Justice Breyer's recent "courtesy stay" in the Gavin Grimm Title IX case in Virginia and the 7th Circuit's decision in Hively. I call this the LGBT national advocacy organizational view of LGBT anti-discrimination law, one which, for various reasons, strongly emphasizes the primary need for Congress to pass the Equality Act to remove all such cases from what Ms. Green calls the "conceptual tangle" confounding the courts trying to untangle sex and gender. From this perspective court victories are seen as a distraction from Congressional action, and these national organizations, therefore, do little to educate LGBTQ persons about their current rights under federal law and the Constitution.
Spin matters. Culture drives much of what happens in the courts. Nothing Ms. Green wrote is wrong; it is just biased, incomplete, and twisted in a way which drains hope from those who read it. Ms. Green writes:
While courts have tried to express sympathy for the people who bring these kinds of discrimination cases, a handful of recent decisions suggest judges won't be willing, or don't feel able, to affirm LGBT discrimination claims in court until the Supreme Court--or Congress--tell them to do so.
She adds, in her next story, discussed below:
None of the circuit courts have ruled that "sex discrimination" can extend to sexual orientation, and the body of law on how that prohibition might apply to gender identity is contradictory and mixed. While some lower courts have accepted the logic of the EEOC and other legal advocates who say the law already fully protects LGBT employees from discrimination, the higher courts have not--and the Supreme Court has not yet ruled definitively on the issue.
Actually, no - the body of law on gender identity is not "contradictory and mixed," unless you take all the cases of the last 50 years and mix them together in a blender. There are two distinct eras, the former one of failures, the current one, since at least 2005, one of successes. Ms. Green's logic is that of the HRC and NCTE lawyers, going back to their erroneous understanding of the reach of the EEOC. They fall back on, as written by Ms. Green:
The EEOC only resolves employment disputes among federal employees, though, and courts are not bound to follow its rulings in the private sphere.
The courts are not bound by the EEOC's decisions, but generally show great deference to them. That is why there have been so many trans victories, particularly since the EEOC's 2012 Macy ruling, and it is only reactionary outliers like Judges Cox and O'Connor who deliberately act to obstruct the Commission's actions.
While it is true that progress on gay anti-discrimination cases is relatively recent, beginning with the EEOC back in 2011 in Veretto and Castello culminating in the Baldwin v. Foxx decision last year, the successes for trans persons continue apace. There has not been, as she says, "a bit more" success for the trans community; there has been much success since 2005 (beginning in the 6th Circuit, no less). It is all those successes which inspired the Department of Justice to come out of the closet in May and sue the State of North Carolina, and then issue its Title IX guidance. It is those successes, which include a growing number of settlements which rarely make the news, that lead me to suggest that all but a handful of Reagan and Bush-era conservative activist judges want to and will affirm LGBT discrimination claims.
A great example is Judge Rovner's words in the Hively case. She could have, if she had no problem being controlled by precedent, simply affirmed the lower court decision and left it at that. Instead, she acted as if she's being held hostage by her circuit's antiquated precedents and begs for someone (the entire en banc circuit or the Supremes) to rescue her from the absurdity of the situation:
Because courts have long held that Title VII will not support a claim for sexual orientation discrimination per se, many courts have been attempting to dress sexual orientation discrimination claims in the garb of gender non-conformity case law, with the unsatisfactory results seen in the confused hodge-podge of cases we detail above.
This is clearly not a judge happy with precedent and the status quo.
Greg Nevins, Counsel and Employment Fairness Strategist for Lambda Legal, says:
The Court acknowledges that this is the wrong outcome and repeats over and over again that the distinctions between discrimination on the basis of gender nonconformity which is prohibited by Title VII and sexual orientation discrimination -- which the Court says isn't prohibited under Title VII -- is an arbitrary line; the distinction creates 'an odd state of affairs' because it's a 'false distinction.' Nevertheless, the Court felt bound by prior Seventh Circuit case law. The writing is on the wall, the precedents the Court felt bound by need to be reconsidered and we need Congress to pass the Equality Act.
It is also not true, as Ms. Green opines, that federal judges are bound to consider Congressional intent, falling back on the understanding that Congress in 1964 had no intention of covering gay or trans persons under Title VII. They clearly did not, but neither did they have any intention of seriously covering women in general, either, as adding "because of sex" was just a ploy to derail the entire Act.
Even the late Justice Scalia recognized the absurdity of trying to discern the motives of Congresspersons when interpreting any law. He may have proudly been a textualist, but he vociferously denied being a mind-reader or "ventriloquist."
The Constitution gives legal effect to the 'Laws' Congress enacts, not the objectives its Members aimed to achieve in voting for them . . . it is utterly impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of 'history' that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law." [Graham County Soil, No. 08-304, slip op. at 12.]
So, for purposes of the law, we really have no need to become mired in academic arguments trying to tease apart the meaning of "sex" and "gender." The determining decision is Price Waterhouse v. Hopkins, and it is no longer a stretch to truly understand how gender (sexual) expression and gender (sex) are irretrievably intertwined when it comes to people's lived reality.
To follow up on Ms. Green's assertion that many judges won't feel able to affirm the existence and rights of LGBTQ people, we now turn to the recent Michigan EEOC case, EEOC v. R.G. & G. R. Harris Funeral Homes. Once again Ms. Green is on the case, with her lede screaming out:
It is perfectly legal for a conservative Christian business owner to fire a transgender employee simply because the person wants to "dress as a woman."
Again, not really. Judge Sean Cox, a conservative activist judge and expert for the Federalist Society, had ruled that the plaintiff, Ms. Stephens, could have brought a sex-stereotyping claim (Price Waterhouse) but not a sex discrimination claim. He knows he is bound by precedent, just as Judge Rovner complained, and in his 6th Circuit that precedent would have yielded a win for Ms. Stephens had she argued in that manner. Clearly he is not one of those judges who believes that gender identity is a sexual attribute. He is also a judge that has no respect for the EEOC of the Obama administration, and he cleverly used Hobby Lobby against the EEOC. He did so in spite of Justice Alito's admonition not to expand the reach of the religious exemption in his Hobby Lobby decision. He ruled against Stephens because he could.
Jillian Weiss, currently Executive Director of the Transgender Legal Defense and Education Fund (TLDEF) but formerly a trans employment lawyer in private practice who settled one of the EEOC's first trans employment cases and has won many others, said:
In ruling that an employer can force its employee to wear 'gender neutral' clothing because of the employers' religious beliefs, the federal court has ignored both Supreme Court and appeals court rulings that correctly understand gender discrimination to be as illegal as sex discrimination. It would be sad indeed if we are to go back to the days in which people could be forced to conform to outmoded masculine and feminine stereotypes in order to keep their jobs.
Then we had the judge-shopping by the red state attorneys general led by AG Ken Paxton of Texas, who found himself his own Bush 43 conservative activist judge, Reed O'Connor, from the nether lands up around the Texas-Oklahoma border to issue a preliminary injunction against the Obama Education Department's guidance on trans students under Title IX. This is all stagecraft; the guidance didn't have the force of law behind it, was requested by school administrators to guide them, and any student is welcome to file suit against her school district if they force her to use the inappropriate facility. The whole point of the guidance was to guide, as trans students have been winning cases and other districts wanted to know how to proceed. The counter-cultural warriors got their useless injunction, and we got to see their over-the-top arguments to be used against trans students.
And as if that suit wasn't enough, now they're suing to undermine the antidiscrimination policy in the Affordable Care Act, acting as if the law forces - yes, forces - Christian physicians to transition trans children against their beliefs. This effort is underpinned, once again, by the long-retired and infamous Opus Dei Catholic extremist psychiatrist, Paul McHugh. The more they win, the more absurd their arguments become. At the end of the day, the dialectic will bend towards justice, and we will all be comfortably protected without any anxiety.
Except, of course, under a President Trump.
On the other hand, a Clinton landslide might bring in its coattails not only a Democratic Senate, but a Democratic House. In which case passing the Equality Act would be a distinct possibility, depending on the religious exclusions, and making much of this legal maneuvering moot. Since those religious exclusions are the major sticking points in getting the community to agree on its strategy going forward, we still need to be working the courts, and doing so with confidence and the hope that derives from an understanding of our recent legal history.