Titles like these make people think that the Supreme Court is “endorsing” or “rejecting” gay and transgender worker protections. But the difference between the majority and minority here wasn’t about “should we have a law protecting gay and transgender workers from employment discrimination?” It was “do we already have a law protecting gay and transgender workers from employment discrimination.” The majority, in an opinion authored by Justice Gorsuch—a dedicated textualist—said that such discrimination violates the 1964 Civil Rights Act’s prohibition on discrimination “because of sex.” I happen to agree, being in the camp that believes “the law says what it says, not want Congress wanted it to mean.” But it’s important to understand that the upshot of this decision is that “Congress, in 1964, already prohibited employment discrimination against gay and transgender people.” That’s a pretty remarkable outcome!
In one of the appellate decisions leading up to this, Judge Lynch of the Second Circuit dissented, agreeing with the positions that Alito, Kavanaugh, and Thomas would take, that Title VII does not protect gay and transgender workers. He’s an Obama appointee, born in Brooklyn. His take: https://www.nytimes.com/2020/06/15/us/gay-transgender-worker...
> “Speaking solely as a citizen,” he wrote, “I would be delighted to awake one morning and learn that Congress had just passed legislation adding sexual orientation to the list of grounds of employment discrimination prohibited under Title VII of the Civil Rights Act of 1964. I am confident that one day — and I hope that day comes soon — I will have that pleasure.”
> “I would be equally pleased to awake to learn that Congress had secretly passed such legislation more than a half-century ago — until I actually woke up and realized that I must have been still asleep and dreaming,” Judge Lynch wrote. “Because we all know that Congress did no such thing.”