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Supreme Court Considers Whether Civil Rights Act Protects L.G.B.T. Workers

Author: Adam Liptak & Jeremy W. Peters, New York Times (USA), Published on: 8 October 2019

Job discrimination against gay and transgender workers is legal in much of the nation, and the wide-ranging arguments underscored the significance of what could be a momentous ruling

If the court decides that the law, Title VII of the Civil Rights Act, applies to many millions of lesbian, gay, bisexual and transgender employees across the nation, they would gain basic protections that other groups have long taken for granted.

The cases were the court’s first on L.G.B.T. rights since the retirement last year of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions. And without Justice Kennedy …the workers who sued their employers in the three cases before the court may face an uphill fight.

For the most part, the justices seemed divided along predictable ideological lines on Tuesday. But there was one possible exception: Justice Neil M. Gorsuch, a member of the court’s conservative majority, who asked questions suggesting that his vote might be in play.

Justice Gorsuch is an avowed believer in textualism, meaning that he considers the words Congress enacted rather than evidence drawn from other sources. And he repeatedly suggested that the words of Title VII may well bar employment discrimination based on sexual orientation and transgender status. 

“If the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation,” he [Justice Alito] said, “we will be acting exactly like a legislature.”

Solicitor General Noel J. Francisco, representing the Trump administration, said it was up to Congress and not the courts to change the law.

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