Is there a swing vote? It is almost certain that the four "liberal" justices on the bench—Kagan, Sotomayor, Breyer, and Ginsburg—will hold that Title VII does cover sexual orientation and gender identity, and it is equally as likely that conservative Justices Thomas and Alito will not. The question, then, is whether any of the other "conservative" justices—Chief Justice Roberts, and new Trump appointees Gorsuch and Kavanaugh—will side with Alito and Thomas.
While oral arguments are certainly not always a sure sign of what is to come, the discussion among the justices and counsel did reveal an inkling of where each justice stands on Title VII's "because of sex" provision.
"It is a question of judicial modesty": Perhaps the biggest surprise of the day was Justice Neil Gorsuch's pointed questions to both sides. At times Gorsuch seemed sympathetic to the plaintiffs' arguments and appeared skeptical that they were fired for anything other than their sexual orientation or gender identity. Notably, Gorsuch's questioning seemed to hint that from a textualist standpoint, the case leans in favor of the plaintiffs—i.e., discrimination "because of sex" under the statute could be reasonably construed to mean the kind of discrimination faced by the gay and transgender plaintiffs in the three cases here. He thus seemed open to the idea that expanding Title VII to cover sexual orientation and gender identity could be achieved through the text of the statute itself—a conservative approach to achieving a "progressive" outcome.
Nonetheless, Justice Gorsuch noted that resolving the issue was perhaps a "legislative rather than a judicial function." While Gorsuch agreed that the text of the statute was "very close" to covering sexual orientation and gender identity, he noted that in the interest of "judicial modesty," the Court should be hesitant to come to such a decision that would involve "massive social upheaval" and instead let Congress legislate on the issue.
Outlook: A decision on the trio of cases is not likely until late next June. In the meantime, a number of circuit courts will continue to hold that sexual orientation and gender identity are covered by Title VII, while others will not. The House-passed Equality Act, which would prohibit discrimination on the basis of sexual orientation and gender identity, remains in limbo in the Senate. The Supreme Court is likely to act before the Senate and could decide the matter.
