Opinion

7 Facepalm Moments During Oral Arguments in SCOTUS LGBTQ Discrimination Case

The Supreme Court heard oral arguments on Tuesday in the consolidated cases under the caption of Altitude Express, Inc. v. Zarda. The central issue is whether discrimination based on a person’s sexual orientation or identity runs afoul of federal civil rights law. There were quite a few cringeworthy moments during the hearing.

1. There was way too much bathroom talk.

Watching bathroom bigotry make its way before a 2019 Supreme Court is positively infuriating. When the Civil Rights Act of 1964 was passed, it was fueled in large part by legislative desire to outlaw discrimination against black Americans. It wasn’t an easy law to get passed, as any number of Oscar-nominated films makes clear. Looking back from 2019, widescale government-sanctioned racial discrimination often seems like a distant relic; but if we crack those history books a bit, we’ll find that a major source of recurring discrimination against blacks was the legalized segregation of bathrooms.

In the Jim Crow era, segregationists warned of the terrifying dangers of mixing races in bathrooms. White women, they argued, would surely catch venereal diseases from black women. During the 70s, the issue was women’s rights, and misogynists everywhere warned that equal rights for women would necessarily (and horrifyingly) require mixed-gender bathrooms. Our civilized society would come to an end, and bathrooms would be sanctuaries for predators everywhere.

When mainstream societal phobias manifested themselves in the 80s and 90s, hysteria over AIDS made its way into the toilet. Sexual deviants would spread disease and molest children if we let them use our bathrooms. And now we have come full circle. Instead of constantly heading to bathrooms as microcosms of legal rights, it would be great if we could stick to the issue at stake: employment discrimination.

2. Justice Neil Gorsuch raised an argument that sounded like he should have been wearing a MAGA hat.

JUSTICE GORSUCH: All right. What I’m — what I’m suggesting, counsel, is that there are male and female bathrooms, there are dress codes that are otherwise innocuous, right, most — most people would find them innocuous. But the affected communities will not. And they will find harm.

This is some inexcusably willful blindness on Neil’s part. According to Gorsuch, the entire world would find something innocuous, but some sensitive snowflakes might be bothered. That characterization and all the what’s-the-big-deal-ism that goes with it has no place in a society that seeks to protect all its citizens. The entire concept of anti-discrimination laws are to prevent “affected communities” from treated in a way that reasonable people think is wrong, offensive, and anti-American.

Discrimination isn’t just the problem of the people who are victimized, and someone sitting on the Supreme Court should have the judgment to know that. Anti-LGBTQ discrimination isn’t about a small group of people finding offense where the rest of the world would be unperturbed, and any suggestion otherwise is an inexcusable simplification.

3. That time Gorsuch said “transsexual.”

JUSTICE GORSUCH: Is it idiosyncratic for a transgender person to prefer a bathroom that’s different than the — the one of their biological sex? Is it idiosyncratic for a transsexual person to wish to dress in a different style of dress…

Look, I hate to be the word police here, and I doubt the justice meant to convey overt disrespect to the trans community, but “transsexual” is woefully out of date. In a case dealing with the actual rights of transgender Americans, it would be good to get the terminology right. We wouldn’t expect to hear the words “Negro” or “Oriental” in a 2019 racial discrimination case, and we shouldn’t expect this here. This is the Supreme Court. Get it together, people.

4. Justice Samuel Alito proved himself way out of touch with the point of the Civil Rights Movement.

JUSTICE ALITO: May I ask you to respond to what some people will say about this Court if we rule in your favor? And what they will say is that whether Title VII should prohibit discrimination on the basis of sexual orientation is a big policy issue, and it is a different policy issue from the one that Congress thought it was addressing in 1964.

Really? It’s a “big policy issue” that’s different? I’m pretty sure Congress passed the law because it thought humans shouldn’t be segregated and demeaned based on some arbitrary characteristic. Equality among Americans was the policy issue. Just because hatred has evolved into new forms doesn’t mean we’re in entirely uncharted territory.

And while we’re on the topic, Congress was specifically addressing gender equality. Reasonable people can disagree as to how sexual orientation should be protected under the law, but let’s cut the crap with how Zarda presents an entirely novel concept. Sex and sexual orientation are two different things, but when we’re talking about discrimination, they’re close enough for jazz.

5. No one was even talking about religion, but Justice John Roberts had to throw a bible into the mix anyway.

CHIEF JUSTICE ROBERTS: Several, I think about 23, states have been passing laws to address these — these issues. And I don’t know how many of them, but I think it’s a big part of them, when they do extend the coverage against discrimination on the basis of sex to sexual orientation, transgender, they also include an exemption for religious organizations.

That was kind of awkward. It’s like Roberts couldn’t resist raising the “we discriminated because working with gays is against our religion” argument. Equating the free exercise of religion with a right to infringe on someone else’s equality is always a false equivalency; listening to the Chief Justice raise it independently made me twitch.

6. Justice Alito seemed like he’d already decided the case.

JUSTICE ALITO: Now, if you add in two other cases, that a man who is attracted to women, not fired, a woman who’s attracted to women, is fired, then you have a much better idea the basis for the discrimination. And it’s sexual orientation. It’s not sex.

Whether “sex” within the context of the Civil Rights Act also covers “sexual orientation” is the central issue of this case. While it’s possible that the Court could rule to protect LGBTQ people from discrimination on other grounds, it’s highly unlikely that such a decision would find support with Justice Alito. For him, the relationship between sex and sexual orientation is everything, and it doesn’t exactly seem like he’s being open-minded.

7. Justice Alito is even less familiar with pop culture than we thought.

An exchange ensued in which an attorney tried to use the example of the classic Saturday Night Live character, Pat. Alito clearly had no idea what she was talking about.

KARLAN: And — and how do they know the person’s sexual orientation? JUSTICE ALITO: Because somebody who interviewed the candidates tells them that. MS. KARLAN: And they are unable to tell anything about the person’s sex?

JUSTICE ALITO: No. MS. KARLAN: So this is Saturday Night Live Pat, as — as an example, right?

JUSTICE ALITO: Well, I’m not familiar with that.

The exchange, and the attorney’s subsequent attempt to describe the ambiguously-gendered skit character, was so awkward that I wanted to run out and buy Justice Alito a western-themed button-down.

[Image via Chip Somodevilla/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey. Follow Elura on Twitter @elurananos

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