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In California, we enjoy broad protections against discrimination under the Fair Employment and Housing Act. The California Family Rights Act and the New Parents Leave Act also protect us. But the same protections aren’t available to everyone in the United States.

California is one of the twenty-two states where discrimination based on sexual orientation is illegal. A couple of other states provide protection in cases of public employment. The rest still can’t agree that discrimination based on sexual orientation is wrong.

And neither can the Supreme Court. On Tuesday, October 8, we came a bit closer to expanding existing protections against discrimination under federal law. But we’re still not there. The deciding vote might be in the hands of Justice Neil M. Gorsuch.

What Are the Cases in Question?

The Supreme Court heard three cases where LGBTQ discrimination was suspected. The first case involved Gerald Bostock, a child welfare services coordinator from Clayton County, Georgia. After joining a gay football league, Bostock was fired from his job. His discrimination suit was thrown out of court, leading him to appeal.

The second case is fought in the name of the late Donald Zarda. Zarda, who was a skydiving instructor in New York, was fired after jokingly referring to his sexuality to a female customer. Zarda’s sister has been pursuing the case since his death.

In the third case, Aimee Stephens went on a vacation from her job in Detroit where her employer knew her as a man. She came back as a woman and was subsequently fired. The U.S. Equal Employment Opportunity Commission has been suing her former employer on her behalf.

What’s the Gist of the Hearings?

On the federal level, we are protected against workplace discrimination by Title VII of the Civil Rights Act of 1964. This law prohibits discrimination based on sex, race, color, religion, and national origin. Like any other law, it’s a product of its times. That’s probably why the original formulation lacked any reference to sexual orientation as a basis of discrimination.

But it’s painfully obvious that our LGBT fellow citizens need the same level of protection. To some, the wording of the Civil Rights Act should provide it. But that’s where the more conservatively inclined Justices disagree.

To the conservative Justices, trying to broaden the sense of the original wording so that it provides greater protection would be tantamount to updating old laws. As Justice Alito stated, “we will be acting exactly like a legislature.” That’s not something courts should be doing.

Still, the other camp believes that the part where it says that discrimination based on sex is illegal should be interpreted to apply to LGBT issues, too. In other words, LGBT discrimination is a form of discrimination based on sex.

Why is Justice Gorsuch’s Role So Important in This Decision?

For now, only Justice Gorsuch has been acting as the swing vote on the matter. On one hand, he’s been reported to show some sympathy and understanding for the “pro” side. 

Gorsuch also seemed to be willing to entertain the notion that gay and lesbian discrimination is based on sex. After all, he mentioned several times that he would accept an argument that would claim so. Unfortunately, however, that’s not all he said.

The Justice had the same worries as the other “con” Justices of the Supreme Court. The issue at hand is whether the judiciary branch would be overstepping its bounds. Gorsuch expressed worry that such a thing might cause a “social upheaval.”

Where Does This Leave Us?

It’s important to remember that, in California, we have laws that protect us against all kinds of discrimination. We’ve seen action brought against the public and the private sector alike. We’ve seen people awarded settlements and getting the justice they deserve.

Hopefully, we’ll soon see those protections extended to all our fellow Americans. If not because that’s the right thing to do, then because the public opinion is in favor of it.

Gorsuch’s worries about possible social upheaval don’t have a strong base in the American public. A new poll conducted by Marquette Law School shows it. 61% of Americans would like the Supreme Court to rule for including sexual orientation as a basis for illegal discrimination. Only 30% are against it.

The same poll revealed two more statistics that might hint at how the public wants this case resolved. 57% would prefer Justices to make their opinions based on the evolving meanings of the constitution. 56% would prefer a fair outcome over following the strict letter of the law. Maybe Justice Gorsuch and his colleagues should take the hint.