[music]

00:07 Peter: Welcome to a bonus episode of 5-4. It's an emergency, guys. The Supreme Court just held that Title VII, the law that prohibits discrimination in employment, protects against discrimination on the basis of sexual orientation or gender identity. In other words, it's now officially illegal nationwide to discriminate against gay and trans people in employment. We thought this warranted a bonus episode. We had an episode coming out today on unrelated issues, we're pushing that back, fuck it, fuck that episode. Not important.

00:47 Rhiannon: We do what we want.

00:48 Peter: That's right. You can listen to it tomorrow, and then you should listen to another episode of ours, maybe an older one, the following day. I am Peter, Twitter's The Law Boy. I'm here with Rhiannon.

01:03 Rhiannon: Hi. Hi. Hi. Hi.

01:04 Peter: And Michael.

01:05 Michael: Hey, everybody. This would be a good place to insert an air horn noise or something, by the way, I just want this to feel very celebratory.

01:15 Peter: Yeah, so this is a weird bonus episode because it's good news.

01:18 Michael: Yeah. That's right.

01:19 Rhiannon: Yeah, we don't know what to do.

01:20 Peter: This is unequivocally good news, and we're not gonna pretend that it's not. I will say that it would be nice to exist in a world where a decision affirming the most obvious and basic rights of our citizens was not viewed as a towering achievement of the court.

01:34 Michael: That's right.

01:34 Rhiannon: Right. Yeah.

01:36 Peter: But here we are. It is. One important thing to note here is that just about everyone thought this was gonna go the other way. It felt like a loss. It's interesting and good to see both Neil Gorsuch and John Roberts join the good guys. Welcome to the resistance, Neil and John. We love you, and we stand by your side.

01:56 Rhiannon: I guess we'll take your fucking crumbs.

02:00 Michael: Yeah. Speaking of crumbs, it's like, I think a good way to contextualize this decision at the top, again, it is unreservedly great. But, there was a poll last year from a reputable pollster, Quinnipiac, about whether or not employers should be able to fire people because they're gay and...

02:17 Rhiannon: Right, what did the good American people say?

02:19 Michael: 92% of the American public thought employers should not be able to do that. 98% of Democrats, 94% of Independents, and 84% of Republicans. This is about as close to a consensus opinion as you can get, and it garnered six out of nine votes.

02:37 Rhiannon: On the Supreme Court. Right?

02:41 Michael: And that felt like a huge fucking upset, 'cause if the liberals weren't on this, you would have thought it would be 5-4 max.

02:46 Peter: Yeah. There was some real discussion about whether Roberts would join the liberals on this, and it seemed like a real possibility, but getting Gorsuch and Roberts? What a win! Thank you to the Supreme Court, we're sorry about the podcast, we shouldn't have cast so many aspursions.

03:02 Rhiannon: John Roberts, sorry I said I would kick your ass.

03:06 Michael: Welcome to 2012. We're glad you are slowly catching up with the cultural milieu.

03:16 Peter: What we wanna do with this episode is explain the decision, talk about Justice Sam Alito's absolutely insane dissent for a little bit and talk about the next fronts in this war, in the war for LGBT rights in employment, but again, for now, thank you to the Supreme Court. You are our magnificent and benevolent rulers, and we bow down to your unmitigated authority.

03:43 Rhiannon: Except when you listen to our episode tomorrow.

03:46 Peter: Yeah. Alright, so the decision, Neil Gorsuch writes for the majority, the 6-3 majority, as we mentioned, joined by the liberals and John Roberts, and Neil is gonna have to pay reparations to the Federal Society after this one.

04:01 Michael: Yeah, they are...

04:01 Rhiannon: They are so mad.

04:04 Peter: Take that!

04:06 Rhiannon: They are so mad.

04:06 Peter: Conservatives on Twitter are furious, and they're not gonna be okay with Neil until they watch him do a race violence of some kind.

04:16 Rhiannon: Yeah, yeah. Right.

[laughter]

04:18 Peter: They need to watch him physically injure a non-white person before they're gonna be okay with him moving forward.

04:25 Rhiannon: Right. Yeah, yeah.

04:25 Peter: So, Rhi, give us some background here, what's going on with this case?

04:28 Rhiannon: Yeah, just really quick, this case, Bostock versus Clayton County, Georgia, it's actually a consolidation of three different cases that kind of came up through the federal court system at about the same time. Gerald Bostock was a long-time court employee in Clayton County, Georgia, and he was fired from his job after he joined a recreational gay softball league. Clayton County, Georgia told him that that was a behavior unbecoming of an employee, and he was fired.

04:58 Peter: Either play full speed baseball, or get out of my business, sir.

[laughter]

05:02 Michael: It's just worth noting that this guy was an exemplary employee, right? I don't even know how you win awards as a court employee, but he did, apparently.

05:12 Rhiannon: Yeah, worked there well over a decade, I wanna say like 18 or 19 years at this point. Had a stellar job record like Michael said. The second case, Donald Zarda, he was fired from his job at a New York skydiving business called Altitude Express after they learned that he was gay, and finally, the third plaintiff, Aimee Stephens, she was terminated from her job at Harris Funeral Homes in Michigan, after she told her boss that she was gonna take vacation time during which she would undergo gender-affirming surgery. So, these three cases, like I said, they all happen sort of 2010 to 2013, and they start making their way through the court system. Eventually, they are consolidated into this one case at the Supreme Court.

05:57 Peter: So, the basic reasoning of the majority here is simple and compelling. Title VII is a law that bars discrimination in employment on the basis of sex. The majority says, "Look, when you discriminate against someone for being gay, you're discriminating against them based on their sex, you're expressly saying that you have problems with a man being with another guy, but you wouldn't mind if it was a woman." That's sex discrimination. The same logic applies to transgender people. So the fact that Title VII does not explicitly say that you can't discriminate based on sexual orientation or gender identity is irrelevant.

06:35 Michael: Right. And what Gorsuch writes, which is I think maybe the best line in the opinion, he says, "The statute's message for our cases is equally simple and momentous, an individual's homosexuality or transgender status is not relevant to employment decisions." It's just nice to see. It's just an unmitigated no qualifiers necessary victory for gay and trans rights.

07:02 Peter: Right, right. Another quote from the decision, I wanna highlight, "It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex." And Gorsuch highlights, I think, a very simple poignant hypothetical. "If there are two employees who are both attracted to men, and the only difference between them is that one is a man and one is a woman, and the man's fired, but the woman's not, the difference is sex," right? That's discrimination on the basis of sex. And that's expressly prohibited by Title VII.

07:36 Rhiannon: Yeah, I just wanna make a quick note too that academics have been talking about this principle in discrimination law for a few years, this idea of anti-stereotyping principle, that the basis of anti-discrimination law is that you're putting unfair stereotypes on people, like race discrimination is wrong because you're stereotyping somebody and drawing conclusions about, say, what they can do at work or whatever based on their race. The same thing with sex discrimination. I'm just pointing that out because it is interesting to me to see over the course of years the academic scholarship about this kind of stuff, and then to see it adopted by a conservative to make a majority here is really interesting. So turning to the dissent, the basic position of the dissenters is that when the law was passed in the 1960s, no one thought that they were passing a law protecting gay or trans people from discrimination, but what Gorsuch says in the majority is, "Look, that's irrelevant because this is discrimination based on sex, and that's what the statute protects against."

08:44 Peter: You have this sort of obvious point, the textualist point, if you will, which is that the statute prohibits discrimination based on sex. And this is a subset of that. This is a type of discrimination based on sex, but there's also a unanimous case from 1998 called Oncale v. Sundowner Systems. And in that case, a guy was being harassed by his co-workers, they were saying homophobic things about him, he claimed that he was not actually gay, but the court held that that's irrelevant. Title VII protected against this type of harassment because it was based on his sex. They were harassing him based on characteristics that would be in their view acceptable for a woman, but not for a man. So the same idea is being applied here 22 years later, and the big news, the big news about this case is the Sam Alito dissent, which is in total over 100 pages long.

09:42 Rhiannon: He's so fucking mad.

09:44 Michael: It's insane.

09:45 Rhiannon: He's so upset.

09:45 Peter: A huge chunk of that is dedicated to appendices, which are...

09:49 Michael: Multiple.

09:50 Peter: That's a very weird thing to have in a dissent, and as with any Alito opinion, you know you're in for a nice little trip to dipshit city. He starts it off with this, this is a quote, "There is only one word for what the court has done today, legislation."

10:10 Rhiannon: Shut the fuck up, fool. I fucking hate him.

10:13 Peter: Okay, dude. Okay. The decision is literally interpreting the law by its words, while Alito was the one trying to read extra context into those words, Only someone like Alito could think that this is a strong rebuttal, right, someone who's so blind to his biases that he leads off with a critique that is probably much better levied at his own argument, than the majority's argument. Right? His own argument does a lot more policy-based arguing than the majority's. So for him to say that the majority is the one legislating from the bench, it borders on projection. The bulk of his argument is really one point, discrimination based on sex is not the same thing as discrimination based on sexual orientation, it's just not. He's throwing his hands in the air, you can sense his exasperation at having to confront the only very slightly nuanced argument that while these types of discrimination are not exactly the same thing, one is a subset of the other.

11:13 Rhiannon: Exactly.

11:13 Peter: Sexual orientation discrimination or gender identity discrimination is simply a type of sex discrimination. He basically ignores that idea, sort of refusing to confront it directly, Kavanaugh also files a dissent where he refuses to confront it directly. And instead he says, "Look, no one at the time of Title VII being passed in the 1960s would have thought that they were protecting sexual orientation or gender identity." And it's like, I guess that's true to a degree, but it's not relevant because the clear language of the law protects against discrimination on the basis of sex, and that's what this is. If there are two otherwise identical employees, both attracted to men, and the only difference is that one is himself a man, then firing one, but not the other, is discrimination on the basis of sex.

12:02 Peter: That is a very simple common sense point that the dissent cannot reason its way around. Gorsuch also points out, many people at the time did think this covered sexual orientation. Lawsuits were filed to that end, and law review articles were published to that end. And laws protecting people on the basis of race were passed in the 1800s. Our conception of what exactly race is has changed over the years. At the time, phrenologists who believed that racial differences could be explained by a skull shape were like a legitimate school of thought, but we don't defer to phrenology when we're interpreting the 14th Amendment, and we shouldn't let ourselves be boxed in because some legislators in the '60s might not have understood the full implications of protecting discrimination on the basis of sex.

12:54 Peter: And more holistically, the big problem for conservatives here is that they're generally all about the statutory text, and the text here says you can't discriminate based on sex. They can't really work with that, so they have to start talking about what the legislators in the 1960s intended when passing the law. But inquiring into legislative intent is something that conservatives claim they hate to do, so to watch them lean way into it is very deeply satisfying to me.

13:24 Michael: Absolutely.

13:25 Rhiannon: Yes.

13:25 Peter: It's hard to explain, but I have now spent a solid decade plus of my life just absorbing their bullshit about how legislative intent is like just the worst thing that you can possibly do with respect to statutory interpretation, and here they are, just claiming it as if it were a perfectly acceptable way to approach this.

13:45 Michael: Yeah, and a lot of their complaints, especially Scalia, but academics as well, it's not just like a usefulness of legislative intent, it's a formalistic one, that say, "Look, Congress didn't pass its intentions, and the president didn't sign their intentions into law. They passed a law, the law is words on paper. The president signed the law. That's what we interpret. We interpret the text. That's all were constitutionally permitted to consider."

14:16 Peter: Right.

14:16 Rhiannon: Right.

14:17 Michael: But here, as Gorsuch is saying, it's like, "The text is the text, man. That's what they passed, that's what we have to work with." And it's driving fucking Alito off the wall. He's so upset.

14:28 Peter: Yeah, and Gorsuch does call him out in what's clearly like a little war of the conservatives where he's like, "We're actually not permitted to rely on the intent at all." And it's clearly aimed right at Alito's head. Alito doesn't really address it in any substantial way.

14:45 Michael: And Alito is like... He's so off the charts angry. There's a point deep into his 100-page opinion where he's exhausted with yelling at the majority, and he's just like, "Look, there are amicus briefs, and there were arguments raised by the parties that the court didn't adopt, and I'm just gonna fucking... I'm gonna go off on those too." Here's 15-20 pages to say why those arguments suck and why they're wrong too, and you're all fucking wrong.

[laughter]

15:15 Michael: Just like ranty, angry. It's so ridiculous. For the sake of completeness, he says.

15:21 Peter: Right. Right, right. So yeah, we wanna address some of the wilder portions of this dissent.

15:30 Michael: Yes.

15:31 Rhiannon: Yes.

15:32 Peter: He has a laundry list of problems this causes that it's literally presented in list form. One of them is that trans people might leverage this opinion to get insurance coverage for transitional surgeries from their employers. Oh my God, it's a slippery slope.

15:50 Michael: Oh no.

15:50 Rhiannon: Oh no.

15:52 Peter: First, you don't let them get discriminated against, next thing you know, they're leveraging that to get gender-affirming surgeries. It takes him about 10 pages, a little more to start talking about pronouns. Great quote here.

16:03 Rhiannon: Oh my god.

16:03 Peter: "Under established English usage, singular personal pronouns are used to refer to someone in the third person, he, him and his for males, she, her, and hers for females. His point is that this might lead to lawsuits for the improper use of pronouns, and also he appears to have forgotten about the pronouns, they and them, those rarely used pronouns.

[laughter]

16:35 Michael: And there's a passage that I think gives away the game a little bit, he presents it as just giving some color about what the times were like when this law was passed, but there's an air of wistfulness about it when he talks about how, at the time this law was passed in the Diagnostic and Statistical Manual, whatever the DSM, being gay was considered a mental disorder, sexual deviancy.

17:00 Rhiannon: Right, yeah, yeah, yeah.

17:02 Michael: The plain truth is that in 1974, homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment. That's not something you write if it's not something you fucking agree with.

17:18 Rhiannon: Right, exactly.

17:19 Peter: I'm reminded of times in my childhood with my father when we would roam the neighborhood, looking for men wearing shorts that were too short and would hurl rocks at their heads. I wonder now if society would reject such a practice.

17:29 Michael: Yeah.

17:30 Rhiannon: I feel sad that we're losing our most cherished tradition.

17:34 Peter: The sense of brotherhood between two men who are violently attacking a gay man. Is that now lost to history?

17:48 Michael: And for good measure, he closes with some classic conservative boogeyman, of course, you can't talk about trans rights without talking about bathrooms and sports.

18:00 Rhiannon: Yes, right.

18:01 Peter: The argument is really just like the comment section of any Breitbart article where it's like, "Look, my daughter is playing basketball, she's in third grade. What if there's a trans woman who dunks on her by the time she's 10? It will be humiliating. I can't put Samantha through that."

18:22 Michael: Right. I mean, he goes in back to back sentences, concerned about somebody who's born biologically male transitioning to female and competing against, in the women's sports, and then turns around and is concerned about people who were born biologically female who are transitioning to male also competing in female sports because they have hormones. And it's like, "So what, you just think that people transitioning or who have transitioned just can't compete in sports?"

18:47 Peter: Right, I think the bottom line for him is this is gonna really upset the division of the sexes in the Hunger Games that he has planned for all of us...

18:58 Michael: That's right.

19:00 Peter: Starting in 2025. So he attaches to his dissent, as we mentioned, some very lengthy appendices, very weird and very rare. I don't have a ton to say about it other than the very first item is the definition of the word sex in the 1953 edition of Webster's New English dictionary. That's before Merriam got involved. This is just Webster on his own.

[laughter]

19:28 Peter: And it's just funny because he's not even doing the textual interpretation here, but somehow he's still doing the nerdy textualist thing of doing dictionary citations.

19:38 Rhiannon: Right, can you imagine clerking for this motherfucker? Like if you're a clerk for Alito, and you put this shit opinion together, and you fucking copied and pasted from Webster's dictionary? Fuck you too.

19:49 Peter: Well, first he has to check to make sure that your hymen is intact, and then...

[laughter]

20:00 Michael: Reading Alito's opinion, something that I think comes through is the degree to which his ideology and so much of conservative and Republican ideology today is just sort of a bundle of resentments, like cultural resentments towards out groups, different groups, people that aren't you. And in this case, the out groups are like gay people and transgender people, and it's just they're not somebody... They're not groups of people that he's concerned with, and that's what permeates the opinion more than anything, and it's that same lack of concern that he will apply to other minorities when that's what's in front of them.

20:42 Rhiannon: Right. I think that's exactly right, and it shows how conservatives will use whatever the convenient framework, whatever the convenient...

20:50 Michael: Absolutely.

20:50 Rhiannon: Analytical rule is to get to their desired outcome because what the ideology is about is about resenting out-groups and resenting change and resenting progress.

21:01 Peter: So Justice Kavanaugh files his own dissent, and I really don't understand why because it's substantively the same as Alito's, from what I could tell. The only thing I'll note about his dissent is that he describes the majority's interpretation of Title VII as new and novel, but like I mentioned, it's exactly in line with Oncale v. Sundowner Systems, a case from 22 years ago, and it's an interpretation that's been around for decades, unless you're just not paying attention.

21:28 Rhiannon: Yeah, absolutely. What Kavanaugh and Alito both want in their dissents is to paint this issue not as one of statutory interpretation, but of the Supreme Court being moved by social change, which... That's for a long time been the reactionary position on the Supreme Court and on the law broadly, that it's overly susceptible to the tides of social progress, and the only problem is that this is just not a case where that critique really applies. What this case is, is the court's recognition that if we are to read the literal meaning of the words in Title VII, its prohibition on sex discrimination implicitly forbids discrimination on the basis of sexual orientation and gender identity, and Alito and Kavanaugh think they're engaging in the culture war, but they're really completely shadowboxing.

22:17 Michael: Yeah. That's right.

22:19 Peter: We should talk as we wrap up about what this means for the future of this type of litigation, these type of claims. I think there's no way around the fact that this significantly empowers LGBT people to bring discrimination claims. I've seen some people online show concern that this is going to lead to employers using pre-textual reasons to discriminate against them, which is true, but it's also true of any discrimination claim.

22:44 Rhiannon: Yeah. Absolutely.

22:45 Peter: And the only thing that can really upset this sort of state of affairs is an end to at-will employment, which I don't think we're anywhere close to in the United States. So I think for now, the expansion of Title VII to include as many categories of people as possible is really one of our best hopes on that front.

23:05 Michael: Absolutely.

23:07 Peter: In terms of what the battle looks like moving forward, I think it's RFRA, the Religious Freedom Restoration Act, which we mentioned in Hobby Lobby, our Hobby Lobby episode. RFRA is a statute that protects the religious expression of citizens and may override conflicting statutes. Therefore, a so-called religious company might claim that they need to be able to discriminate against gay people as a matter of religious expression, and the court hasn't confronted that specific issue yet. It feels to me like this is where the argument is going. Gorsuch carves it out. He basically says, "By the way, this doesn't really address the RFRA issue." Sort of leaving some room for some finagling. I guess if I had to be a doomsayer, and we are sort of doomsayers on this podcast, it feels like a good little Roberts two step. You give them the Title VII win, and then you completely hollow it out by creating a huge exception through the Religious Freedom Restoration Act, which basically allows any company to say, "Well, look, I know that you said we can't discriminate against LGBT people, but it's different because we're religious," and just see where that gets them, and to be clear, I don't think that there are any companies trying to do this on non-religious grounds. Religion is the reason you do it. Religion is the reason you discriminate against LGBT people.

24:24 Michael: Well, bigotry's the reason. Religion is the reference there.

24:28 Peter: Yeah, that's fair enough.

24:29 Rhiannon: Bringing it back to the people who were involved in these cases, wanna note before we leave that plaintiff Aimee Stephens actually passed away just over a month ago in hospice care, and so just wanna say thank you, Aimee. You deserved a much better world while you were here. It's a little bit better now because of you and hope you rest in peace.

[music]

24:53 Peter: So we're dropping another episode tomorrow. Fuck it. We do whatever we want on this podcast, okay? You thought we were once a week. Sometimes we go two. It is now 7:30 PM. Our producer is gonna turn this around, then by morning, you'll be listening to it.

25:14 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

25:37 Leon: From the Westwood One Podcast Network.