I had the opportunity to attend the 2019 John Hemphill Dinner with members of our firm and other guests, where Justice Neil Gorsuch was the featured speaker. After the event concluded, the attendees had a brief opportunity to meet and take a picture with Justice Gorsuch. I posed for a picture alongside my mentor and our firm’s senior shareholder, Michelle May O’Neil, and another firm colleague, Jennifer Satagaj, and later, I excitedly posted the picture to my social media account.
There was almost an immediate backlash of indignation and fury, with multiple negative comments posted to my page by several of my colleagues and friends, who seemed to be outright questioning my commitment to the LGBTQ community. I was taken aback. Prior to posing for the picture, I had witnessed Judge Audrey Moorehead, a prominent and esteemed member of the Dallas judiciary who is also a staunch democratic ally, not only shake Justice Gorsuch’s hand and pose for several pictures, but also engage him in a somewhat lengthy dialogue where the two laughed and carried on with the ease of two long-lost schoolmates. Now, part of this phenomenon was simply the magic that is Judge Moorehead–but because I trust her implicitly as a mentor and friend–in that moment, she was an example to me of perfect diplomacy. I set aside all hesitation and confidently followed her lead and posed for a picture without further hesitation.
Fast forward to June 15, 2020.
In its landmark opinion in Bostock v. Clayton County , the United States Supreme Court made a giant leap forward by elevating the rights of LGBTQ people to protected status under Title VII of the Civil Rights Act of 1964. The grouping of cases before the Court sought the Court’s determination as to whether a person can be fired simply based on their sexual orientation, gender identity, or gender expression. The 6-3 decision, authored by Justice Neil Gorsuch, resoundingly responds with a “no.”
Title VII of the Civil Rights Act of 1964 prohibits discrimination because of sex, and the Court found that the word “sex” includes sexual orientation, gender identification, and gender expression. This is the first major case on transgender rights. Prior to this decision, many states (including Texas) could legally discriminate against a person for being gay, bisexual, or transgender. Now, workplace protections extend to millions of people across the nation.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex…It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Ideally, this opinion will impart on judges in Texas family law cases the importance of protecting individual rights regarding sexual orientation, gender identity, and gender expression, particularly as those rights relate to parenting decisions. No court should deny a parent a relationship with his or her child based on sex as the term is defined in Bostock. While the Bostock opinion brings forward the rights previously bestowed on LGBTQ parents from Obergefell and Pavan, it will be interesting to observe how Texas courts apply those rights with regard to non-traditional families going forward.
So, what is the lesson?
Well, the Bostock opinion, authored by Justice Neil Gorsuch, has been widely embraced by every major LGBTQ rights advocacy group:
“Finally. Today, the law, justice and fairness are on our side. Our nation’s highest court confirmed what Lambda Legal has argued for years, that discrimination against LGBTQ workers is illegal.”
“This victory is a watershed moment for the LGBTQ community in Texas and across America, which has been working for decades to secure basic protections from discrimination. The Court’s decision will directly impact LGBTQ Texans and millions of people across the country and allow them to live their lives and take care of their families with respect and dignity,” said Ricardo Martinez, CEO of Equality Texas.”
“This is a landmark victory for LGBTQ equality,” said HRC President Alphonso David. “No one should be denied a job or fired simply because of who they are or whom they love.”
“For the first time, this historic decision ensures that LGBTQ people have nationwide employment protection and represents a monumental step that will help to create a safer working environment for everyone,” said NCLR Executive Director Imani Rupert-Gordon.”
On the day that I posed for a picture with Justice Gorsuch, he was largely viewed as an adversary to LGBTQ rights, but on June 15, 2020, he authored one of the most important pro-LGBTQ rights opinions ever to come out of the US Supreme Court.
Always take the picture.
The late John F. Kennedy once said: “If we cannot end now our differences, at least we can help make the world safe for diversity.”
Justice Gorsuch and I likely do not see eye to eye on many things, but the majority opinion he authored in Bostock will go far in making the world safer for diversity.