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.
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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.
Conservative Gorsuch, President Donald Trump’s first nominee to the Supreme Court, held the key to the decision that ultimately declared the Civil Rights Act prohibits employers from denying jobs or promotions to gay, lesbian and transgender workers.
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It was fellow conservative Roberts who assigned him the opinion. And as Gorsuch devised his legal rationale, liberal Justice Elena Kagan appealed in public and private to his interest in sticking close to the text of laws. A 2010 appointee of President Barack Obama, Kagan has demonstrated a savvy ability to negotiate across ideological wings of the bench.
On the other side, a series of scathing draft dissents by conservative Justice Samuel Alito that attacked Gorsuch’s logic failed to dissuade any of the six justices in the majority, who did not waver through the final months of internal deliberations.
Meanwhile, a late switch in an unrelated case that also involved Gorsuch confounded lawyers and journalists, who were watching for signs of what might be happening in the LGBTQ disputes.
The ruling that emerged in the consolidated LGBTQ cases reflects a new kind of consensus-building among the justices. The conservative majority is not a monolith that can be counted on to vote a certain way. Different conservative justices, following their own instincts and approaches, sometimes move left on the law.
As the recently completed session demonstrated, Roberts is the conservative most apt to break with his brethren and join the four-justice liberal wing. But in the gay and transgender disputes, it was Gorsuch, writing for the majority, who played the central role as author of the opinion.
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.
Resolutions of disputes begin with votes in the justices’ private conference room, taken soon after oral arguments in a case.
What was not previously known in the LGBTQ disputes is that the justices voted first to affirm a lower court ruling that had favored a gay man fired from his job as a skydiving instructor in New York and to reverse a lower court decision against a gay man removed from his post as a county child-services coordinator in Georgia.
But, according to the new details learned by CNN, when it came to the case involving a transgender woman, Aimee Stephens, who had challenged her firing at a Michigan funeral home, the justices were torn as they discussed the issue.
Some justices thought sexual orientation and gender identity cases would most definitely be treated the same under the law. But others wondered about differences with the claims and even whether the Stephens case might be returned to a lower court for further hearings, essentially punting on the question of transgender rights.
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.
(One of the most significant powers of the chief justice is deciding who gets to write the court’s majority opinion in a case. That happens after votes are cast for all the cases heard in a two-week sitting. The chief justice makes all assignments when he is in the majority; if he is in the minority, dissenting, the senior associate justice in the majority makes the assignment.)
The consolidated cases represented the Supreme Court’s first test on LGBTQ rights since the 2018 retirement of Justice Anthony Kennedy. He had been the voice of the court as it advanced gay rights in a series of decisions, beginning in 1996 and culminating with the 2015 decision declaring a constitutional right to same-sex marriage. That ruling had come down to a single vote.
Tensions were further heightened by the Trump administration’s reversals on legal protections for gay and transgender workers. The administration had sided with the employers who fired the workers after learning of their sexual orientation or gender identity. When the decision came out in June, Trump said simply: “They’ve ruled and we live with the decision.”
Gorsuch’s approach to the law
The 52-year-old Gorsuch, a former Denver-based US appeals court judge, has embraced a method of interpreting laws through their plain language as written, rather than trying to understand lawmakers’ expectations at the time or changing societal needs.
A justice who follows the textualist method for statutes, Gorsuch wrote in his 2019 book, “starts with dictionary definitions, rules of grammar, and the historical context in which a law was adopted to see what its language meant to those who adopted the law.”
During oral arguments in October, Kagan directed her appeal to Gorsuch. She asserted that a man who had been fired because he loved other men, rather than women, is protected under the Civil Rights Act.
“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.”
Title VII of the Civil Rights Act specifically bans discrimination “because of” sex, race, religion or national origin. Kagan contended that discrimination against a gay man because he loved other men, not women, necessarily, was “because of sex.”
Gorsuch’s approach typically leads him to narrower constructions of individual civil rights and liberties. But as he considered Title VII, his approach was leading to an opposite, more expansive result.
While Gorsuch expressed concern at oral arguments about “massive social upheaval” if the justices ruled in favor of broad LGBTQ worker protections, he has previously asserted that a true textualist should not concentrate on whether an outcome would be good or bad.
Roberts and debates over bathrooms and religious liberty
Another intriguing turn in the early dealings was the vote of Roberts with the majority.
Until these cases, Roberts had never signed on to a gay-rights decision in a case argued before the justices, and he had bitterly dissented in 2015 when the justices announced a fundamental right to same-sex marriage.
Roberts, who has held the center chair since his appointment by President George W. Bush 15 years ago, has never been a strong proponent of the textualist approach advanced by Gorsuch.
Yet Roberts was coaxed to the majority camp on a civil rights issue that was increasingly salient in contemporary America.
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 6th 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.”
Roberts separately referred to exemptions from state anti-bias laws for religious employers, and in their private discussions, CNN has learned, justices mulled religious liberty concerns.
Harris Funeral Homes had originally argued that it had a religious right to fire Stephens when she underwent surgery and began presenting herself as a woman. But Harris had lost that claim at the 6th Circuit and had not appealed to the Supreme Court on that ground.
A rare media leak puts the pressure on
Meanwhile, conservatives Gorsuch and Roberts were hit by outside pressure.
The most substantive part of the court’s decision-making process comes as justices crafting the opinions for the majority and the dissent work out their legal rationales in drafts. The bottom-line judgment in any case is important, but it is the legal reasoning that establishes the rules for future related disputes. As justices develop their rationales, they send around drafts for the other eight justices to see.
Outsiders are often in the dark about internal alliances, motivations, and the twists and turns that lead to a nationwide ruling. The justices say their final, written opinion should speak for itself.
But in this high-stakes case, word that Gorsuch and Roberts had voted with the four justices on the left began leaking out in November, a rare breach of confidentiality during the drafting process at the secrecy-obsessed institution.
Some spreading the word plainly hoped to jab the conservatives, perhaps even pressure them to change. The Wall Street Journal published an editorial on November 21 disapproving of the possible developments, headlined, “The Supreme Court’s Textualism Test: Kagan tries to lure Gorsuch and Roberts off the Scalia method.” (Justice Antonin Scalia, a conservative icon who died in 2016, was known for his interpretive approach tied to the text of laws.)
Few people beyond the court’s walls really knew what was transpiring, yet those early whispers regarding votes and internal debate held some truth.
Gorsuch exudes confidence regarding his textualist method and would easily have found arguments along those lines in the filings supporting the gay and transgender employees, without any guidance from Kagan.
Yet she was in touch with Gorsuch during deliberations, sources told CNN. And of all the four justices on the left, Kagan seems most able to persuade Roberts. Despite holding different ideologies and politics, their legal experience and instincts are similar, and they appear to enjoy a mutual respect.
Gorsuch finished a first draft for colleagues to read in early February, CNN has learned. Kagan told Gorsuch and the others she was signing on straightaway.
Soon after, the other liberals – Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor – joined Gorsuch’s approach and conclusions in the three cases combined under the title of Bostock v. Clayton County. Roberts was in at the same time. That rapid sequence has not been previously reported.
The quick agreement was a reflection of collaboration underway and an indication that the majority that had locked in soon after oral arguments was holding.
Alito’s hard-nosed dissent
As those in the majority offer feedback on the court’s opinions, dissenting justices begin devising their responses, often in the hopes of persuading someone to their side. Court decorum dictates that all justices receive all drafts, but factions sometimes talk privately as they work out sticking points.
During the drafting process, individual justices may break off to write separate concurring statements, or – in rare instances – a justice might switch sides altogether, persuaded by another person’s writing. Here, nobody was swayed despite forceful arguments from the dissenters, according to CNN’s reporting.
Alito was infuriated by the turn of events and immediately after seeing Gorsuch’s draft opinion, according to sources familiar with the matter, alerted his colleagues that he would be writing a dissent.
Justices Clarence Thomas and Brett Kavanaugh, Trump’s second appointee, also believed Gorsuch was flat wrong about the scope of Title VII coverage. Congress could change the law if it thought additional protections were warranted, they contended.
Thomas, the senior member of that conservative team, had tried subtly to persuade Gorsuch that he was not being true to conservative textualism, but to no avail.
Alito, meanwhile, was unyielding. He believed Gorsuch’s stance contradicted his own oft-expressed view that judges should avoid policy decisions. Alito finished his first draft after the justices had retreated to their homes because of the Covid-19 pandemic and sent around copies of his dissenting opinion in April, CNN has learned.
The two sides were thus joined as Gorsuch and Alito began to face off through continuous drafting. Within days in April, Gorsuch responded to Alito’s scorching contentions and reinforced his textualist reading that Title VII’s prohibition on sex discrimination covers LGBTQ workers.
Alito was especially angered by Gorsuch’s view that he was taking a modest, humble approach to the law, as his dissenting opinion made clear. (Alito’s final opinion, released to the public, said, “If today’s decision is humble, it is sobering to imagine what the Court might do if it decided to be bold.”)
Thomas signed on to Alito’s dissenting opinion. Kavanaugh, however, was uneasy, according to the sources. In the end, he separated himself from Alito’s caustic tone and wrote his own dissenting statement.
Alito was scoffing at what he regarded as Gorsuch’s phony attempt at the Scalia brand of textualism. “(N)o one should be fooled,” Alito wrote in his final opinion. “The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated – the theory that courts should ‘up-date’ old statutes so that they better reflect the current values of society.”
While the justices sparred behind the scenes, advocates on both sides of LGBTQ issues were growing apprehensive about what was happening with the cases. After the conservative news reports in late 2019, little was leaking.
Journalists and lawyers watch for signs of who might be writing the majority opinion to learn which way the outcome could be headed. One approach for detecting possible authorship is to watch the assignment pattern. Typically, each justice writes only one opinion per two-week oral argument sitting, during which about 10 cases are usually heard.
So court-watchers were thrown off the trail when Gorsuch wrote the opinion in another October case, Ramos v. Louisiana, regarding whether state criminal convictions require a unanimous jury vote, CNN has learned. Gorsuch became the author of the court’s opinion in that case only after justices had worked out their legal rationales months later.
The Ramos development did not change the outcome or timing of the LGBTQ decision, but Gorsuch’s leading role in the Ramos case was enough to fuel more questions for those searching for clues to which justice was writing the momentous LGBTQ decision.
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.
Questions of religious liberty were similarly handled by looking ahead, but with a firmer admonition.
“We are … deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society,” Gorsuch wrote, pointing to the First Amendment’s guarantee of free exercise of religion and the 1993 Religious Freedom Restoration Act.
The latter law prohibiting the federal government from substantially burdening a person’s exercise of religion, Gorsuch asserted, could supersede Title VII’s prohibition on sex discrimination in certain cases.
That may have given liberal justices pause. But they were not going to press for change. They had won a 6-3 ruling that even a year earlier had seemed impossible.