President Trump is still proud of his first Supreme Court nominee, Neil Gorsuch, after he sided with the liberal minority on a landmark gay and transgender rights case.
In an interview with the Washington Times on Thursday, Trump said he remained confident in both Gorsuch, who he nominated in 2017, and conservative Justice Brett Kavanaugh, who was nominated the following year, despite the fact they diverged on a major Supreme Court case pertaining to gay and transgender employment discrimination.
“I’m proud of them both,” Trump told the Washington Times.
On Monday, the high court ruled by 6-3 vote that Title VII protections within the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, also applies to gay and transgender people. The case, Bostock v. Clayton County, Georgia, consolidated multiple cases that argued civil rights protections should be expanded to gay and transgender people. Gorsuch and Chief Justice John Roberts, who was nominated by President George W. Bush, sided with the liberal minority on the issue.
“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law,” Gorsuch wrote for the majority opinion.
The case was argued in October 2019 and focused on two separate definitions of the term “sex,” with one side arguing it should be determined by social gender identity and the other arguing it should be determined by biological sex.
The conservative minority issued two separate dissents, one authored by Justice Samuel Alito and joined by Justice Clarence Thomas, and the other written by Kavanaugh.
“Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII,” Alito wrote. “But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”
Kavanaugh struck a different tone in his dissent. Though he expressed the belief that the court did not have “the responsibility to amend Title VII,” he acknowledged that the court’s decision was a public policy victory for LGBT activists.
“Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans,” Kavanaugh wrote in his dissent. “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit — battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives.”
The decision will likely have wide-reaching implications for employers, especially those attached to a faith or religious tradition that disagrees with gay marriage or issues related to transgender people.
