The U.S. Supreme Court recently heard oral argument in the cases addressing whether sexual-orientation discrimination and gender-identity discrimination violate Title VII of the Civil Rights Act of 1964.

Listening to the oral argument, and questions from the justices, was revealing.

From a sexual-orientation standpoint, the argument was that a gay employee is “similarly situated” to a heterosexual employee of the opposite sex. For example, a gay man and a heterosexual woman are both attracted to men, so they are appropriate comparators.

If an employer takes adverse action against the man for being attracted to men, but not against the woman for being attracted to men, the employer is guilty of discrimination based on “sex” in the old-fashioned sense.

In the context of gender-identity discrimination, the argument was essentially the same.

The attorney for Aimee Stephens — the transgender employee who was terminated after she announced that she would begin presenting as a female — said that Stephens was “assigned” the male sex at birth, so her gender identity and her “assigned at birth” sexes did not match.

In determining whether she had a valid discrimination claim, the appropriate comparator would be an employee who was “assigned” the female sex at birth and whose gender identity was also female. If the employer treated the transgender female less favorably than the biological female, then it would be treating the two employees differently based only on their “assigned,” or biological, sexes.

In other words, it was treating the transgender employee less favorably because she was a biological male. Thus, transgender discrimination is nothing but a type of old-fashioned “sex” discrimination — even as the term “sex” was understood in 1964.

Interestingly, the attorneys for the employees also agreed that Title VII did not require employers to treat women and men in an identical manner, as long as the differential treatment did not disadvantage one sex over the other. They also declined to endorse identical terms of address for men and women, identical dress codes for men and women, or gender-neutral restrooms and changing areas. The topic of preferred pronouns never came up with a Court that leans conservative by 5-4.

‘Parade of horribles’

Both the “liberal” and “conservative” justices asked about whether interpreting Title VII to encompass LGBT rights would make it unlawful for employers to have separate male and female restrooms, or whether transgender women (biological males) would be able to work at, say, a shelter for rape victims or compete with biological women in sports. Justice Stephen Breyer dismissed these concerns as a “parade of horribles.”

The alleged “swing vote,” according to most commentators, is Justice Neil Gorsuch. Lean in to his observation:

JUSTICE GORSUCH: — and that — that is more effective — more appropriate (sic) a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.

This exchange is on Pages 26-27 of the R.G.-G.R. transcript.

First, I don’t think Justice Gorsuch was talking about himself. I think he was talking about a hypothetical judge: “(A)ssume for the moment . . . The judge finds it really close.”

Second, I think he’s asking whether, even in a close case, whether it isn’t better to provide protections to LGBT people through the give-and-take of the legislative process rather than through court interpretation.

My prediction

Justice Gorsuch will find that Title VII does not prohibit sexual-orientation or gender-identity discrimination. You can throw rocks at me if it turns out that I am wrong.

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Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL office and can be contacted at teden@constangy.com or 334-246-2901. He thanks his Partner Robin Shea for her blog on this topic.

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