High court delivers big win for transgender rights

NICK EICHER, HOST: It’s Tuesday the 16th of June, 2020. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Thanks so much for your response so far to our June Giving Drive. We’re a little over half the way to our goal, a little over half the way through the month. So that’s good.

EICHER: It is good. And it’s such an important moment for biblically objective journalism. We’re making an impact here at WORLD and it’s because you’re here to help make it grow. We strive every day to earn your trust, and if we have, we’d be grateful if you’d drop by wng.org/donate and give us a vote of confidence. Wng.org/donate, and thank you!

REICHARD: The Supreme Court handed down two opinions in cases argued earlier this term. One of them I will treat in two sentences. The other one, well, let’s just say it needs more than two sentences.

TRUMP: I’ve read the decision and some people were surprised, but they ruled and we live with the decision. That’s what it’s all about. We live with the decision of the Supreme Court. Very powerful, very powerful decision actually.

President Trump’s blasé reaction to a bombshell 6-to-3 decision advancing LGBT rights, and written by his first nominee to the Supreme Court, Neil Gorsuch.

It applies federal sex-discrimination law to gay and transgender employees.

EICHER: These employees sued under Title VII of the Civil Rights Act of 1964. That law that doesn’t mention sexual orientation, nor does it mention gender identity. It says only that employers must not fire nor fail to hire any person because of individual’s race, color, religion, sex, or national origin.

Writing for the majority, Justice Gorsuch interpreted the meaning of the word “sex” to include gay and transgender persons. 

During oral argument in October, this is what Gorsuch had to say:

GORSUCH: When a case is really close… on the textual evidence and I — assume for the moment — I’m with you on the textual evidence. It’s close, okay?…A judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision…

REICHARD: But the opinion didn’t address social upheaval. Rather, the six justices applied the legal doctrine of “textualism.” The late Justice Antonin Scalia wrote a book on it, saying laws ought to be interpreted in the ordinary meaning at the time of passage. But because the law was written in broad terms, the majority reasoned, it should be interpreted broadly. The majority focused on the meaning of the word today, not in the past.

EICHER: The majority did not purport to address bathrooms, locker rooms, and other infringements on privacy, speech, and religious beliefs. It mentions the Religious Freedom Restoration Act as sufficient protection for those who have sincerely held religious beliefs about human sexuality.

REICHARD: In dissent, Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh. They used harsh words to describe the majority opinion: deceptive, illogical, breathtakingly arrogant. 

The first line of one dissent reads: “There is only one word for what the Court has done today: legislation.” 

U.S. Solicitor General Noel Francisco made this exact point in the oral argument:

FRANCISCO: I actually find it troubling for courts to take that approach because I actually think it deprives the people of the ability to struggle with these issues democratically.

EICHER: The dissent wrote of great damage to the separation of powers, grave misunderstanding of statutory interpretation, and danger to freedoms of religion and speech. 

Justice Kavanaugh wrote his own dissent, pointing out the fate of women’s sports under Title IX is now in question, as athletes born male can claim the right to compete against women. Employers and teachers may have to alter standard English to suit subjective perceptions of gender. And religious liberty is in danger because teaching of sexual morality is at odds with this judicially imposed new meaning.

Lost in all this is the perspective of the small business owner who hired a man who then later presented as a woman. Tom Rost read from a statement earlier this year:

ROST: Businesses must be able to rely on what the law is at the time they make business decisions. Sadly, to the ACLU and EEOC, we were just a means to their end of redefining the law without Congress. That’s unjust. All of us should be able to rely on what the law says.

The case goes back down to lower court for further proceedings consistent with the majority opinion.

REICHARD: The second opinion handed down yesterday says federal law lets the U.S. Forest Service grant developers the right to lay a natural- gas pipeline across the Appalachian Trail. This is a 7-2 decision.

(AP Photo/Manuel Balce Ceneta, File) In this Oct. 8, 2019, file photo, supporters of LGBTQ rights hold placards in front of the U.S. Supreme Court in Washington. 

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