In his Oct. 7th article in Rolling Stone, Professor Cohen wonders why the three Supreme Court cases addressing the issue of LGBTQ employment rights – specifically, whether you can be fired for being gay or transgender – are not receiving the attention that the same-sex marriage case did in 2015. According to Cohen, these current cases have “undeniably greater importance and impact, and yet, almost no one’s talking about it.”
While the right to marry was of symbolic importance, Cohen writes, it’s much more important that employment be protected. Title VII, the federal law that protects against employment discrimination, does not mention anything about “sexual orientation” or “gender identity.” Thus, the question before the court will come down to the court’s interpretation of the word “sex.”
For all five of the Court’s conservatives, these cases present a serious test: stick with their conservative political ideology or go with their usual method of reading statutes based on the plain text of the law. If they follow politics, they will rule against LGBT rights but all-but ignore the word “sex” in the statute. But if they read the word “sex” as it should be read, they will be abandoning their politics.
Cohen, an authority on the constitution and gender issues in the law, writes frequently about those topics at Rolling Stone.