Is anti-LGBT discrimination a form of sex discrimination?

That is what the Supreme Court said Monday it will decide next fall, when it hears three cases on anti-LGBT discrimination in the workplace. And with Justice Kavanaugh having replaced Justice Kennedy, the outcome is totally unknown.

First, let’s remember what these cases are not about. They are not about whether it’s a good thing to fire someone for being gay or trans. In fact, a whopping 69% of Americans say it should be against the law to do so.

The trouble is, it isn’t. In fact, under federal law, and in 14 states, it is perfectly legal for my boss to say “Wait a minute—you’re gay?! You’re fired.”

That is exactly what happened to Don Zarda, the plaintiff in one of the cases (Zarda v. Altitude Express) and Gerald Lynn Bostock, the plaintiff in another (Bostock v. Clayton County, Georgia). Zarda was a skydiving instructor, Bostock a county child welfare services coordinator. Both were fired when their employers learned they were gay.

A similar thing happened to Aimee Stephens, a transgender woman working as a funeral director. When she announced her transition from male to female, and informed her employer that she would be coming to work in women’s clothing, she was fired on the spot. She’s the plaintiff in the third case, EEOC v. R.G. & G.R. Harris Funeral Homes.

Once again, under federal law and in 14 states, all this is perfectly legal.

Unless it isn’t.

Over the last two decades, law professors, activists, and some government officials have developed the theory that anti-LGBT discrimination is actually a subset of sex discrimination, which is banned by Title VII of the Civil Rights Act.

The theory is straightforward. When a gay man is fired for being gay, they’re really being fired for being a man. If I were a woman married to a man, then the bosses at Altitude Express wouldn’t fire me. But because I’m a man married to a man, they would.

“ They have chosen not to protect LGBT people, year after year. ”

Likewise, if Aimee Stephens had been assigned female at birth (i.e. born a woman, under current law), then her coming to work in a dress would not have gotten her fired. But because she was assigned male at birth, it did.

The Obama administration adopted this position for transgender people, saying that gender identity discrimination was a form of sex discrimination. It took no position on sexual identity discrimination.

The Trump administration reversed course, undoing Obama-era protections and taking the official position that sexual identity discrimination was not covered by Title VII.

The question now is whether that interpretation is correct – or, more precisely, whether it’s the only correct interpretation of the law. Remember, the Trump administration has abandoned this interpretation, and LGBT people are getting fired for being trans or gay all the time. So these three cases aren’t about whether the pro-LGBT interpretation is permissible – it’s whether it’s necessary.

That is actually a very hard argument to make.

It’s hard enough even to make the lighter argument: that Title VII could be read as covering LGBT people. That’s because, in the case of an ambiguous statute, one of the things that courts look toward is legislative history. And in this case, Congress has again and again (and again) failed to pass LGBT-inclusive employment non-discrimination laws.

It’s not like they’re unaware of the issue. They are painfully aware of it. They’ve debated it. And they have chosen not to protect LGBT people, year after year.

What are all those debates about, if Title VII already protects gay and trans people? By expressly rejecting LGBT non-discrimination laws, Congress has clearly indicated that it does not think LGBT people should be protected, and that they aren’t protected under existing law.

Moreover, there isn’t a shred of evidence from when Title VII was passed in 1964 that anyone thought it was protecting gays and lesbians (let alone trans people, who were not identified as such at the time). Quite the contrary; a vast majority of Americans were prejudiced against gays and lesbians.

So for the Supreme Court to find for the plaintiffs in these three cases, it has to go against decades of legislative history, starting with Title VII itself.

And now, not only must the Court ignore clear legislative intent, it must also overrule the executive branch, which has said loud and clear that it is perfectly acceptable to fire people for being gay and trans. Not only has the Trump administration abandoned the pro-LGBT interpretation of Title VII, but it has rescinded Obama-era executive orders requiring government contractors not to discriminate, and has, itself, fired thousands of transgender soldiers for no reason other than their being trans.

In other words, these three cases are a very heavy lift. Some have even questioned whether the cases should have been brought at all, since already they’ve been misunderstood and misconstrued. Like the Masterpiece Cakeshop decision, which was actually a very narrow opinion limited to its specific facts but was interpreted as a broad license for businesses to discriminate against gay customers, a loss in these three cases could be understood as being a similar license to discriminate against gay employees. Supreme Court cases are symbolic as much as substantive, and a loss in these cases could be yet another bad omen for LGBT (in)equality.

Finally, the result will most likely come down to Justice Brett Kavanaugh.

The combination of the conservative justices’ past votes on LGBT cases (including those of Justice Gorsuch, who has gone out of his way to take anti-gay positions whenever possible) and the challenging nature of these three strongly suggest four votes for the anti-LGBT position. Justice Breyer is perhaps questionable, while Justices Ginsburg, Kagan, and Sotomayor are likely to take the pro-LGBT interpretation.

That makes Justice Kavanaugh the swing vote.

Tempting though it may be, it’s not fair to Justice Kavanaugh to assume how he’d vote as an ideological matter. There’s not enough of a record, and, remember, the Republican-appointed Justice Kennedy—whose vote in favor of gay marriage was decisive—was Kavanaugh’s mentor as well as predecessor. It’s really an unknown.

But as a jurisprudential one, it’s hard to see him expanding the scope of a federal law over the objections of the executive and legislative branches, especially in the original legislative record. In his years on the D.C. Circuit, Kavanaugh showed himself to be a judicial as well as ideological conservative. It would be a remarkable reversal for him to expand the scope of Title VII over its plainest reading, its historic understanding, its legislative intent, and executive branch interpretation of it.

Anything could happen, but for the LGBT community, it’s hard to see this going well.

If there is a silver lining here, it’s that a loss in these cases could motivate Congress to finally get with 69% of Americans and explicitly ban employment discrimination on the basis of sexual orientation or gender identity. The bill known as the “Equality Act” would do exactly that, and it is almost certain to pass the House this year.

That would be a much more honest, democratic, and clear result than stretching Title VII. Let the Senate debate the Equality Act. And if the supposed moderate Republicans in that body choose to abandon LGBT Americans, let them pay for it at the polls.