Perspectives: Marquee LBGT case has Minnesota roots

Marshall H. Tanick

“Is not sex in play here; and isn’t that enough.”

Supreme Court Justice Neil Gorsuch (October 8, 2019)

It’s unusual for the U.S. Supreme Court to begin its term with one of its marquee cases. It’s even more infrequent for the high court to hear a case involving transgender rights — it’s never done so before now.

But these two rarities coalesced early last month when, on the second day if its 2019-20 term, the justices spent a couple of hours pondering and waxing about high profile litigation concerning the employment  rights of transgender individuals as well as gays and lesbians.

The LGBT litigation that helped initiate the court’s current session is one of its marquee matters.  The case, a combination of three separate lawsuits, addresses whether the federal anti- discrimination employment laws extend to lesbians, gays, bisexual, and transgender individuals. Although the trio of consolidated actions come from different states (Georgia, New York, and Michigan), the overlapping issue they raise has its roots here in Minnesota.

The joint lawsuits involve two gay men and one transsexual who allege they were fired from their eclectic respective jobs as a social worker, skydiving instructor, and funeral director due to their sexual identities. They each sued for wrongful termination under Title VII of the Federal Civil Rights Act, a 1964 measure that bars discrimination in the workplace due to “sex,” and a number of other personal characteristics and features, such as race and religion. Two of them prevailed in preliminary rulings allowing their cases to proceed, while the other was thrown out of court.

The issue before the high court in each of the cases is whether the act only covers traditional male-female gender discrimination or applies more broadly to adverse actions by employers attributable to the sexual characteristics of the effected employees.

Arguments advanced

One argument advanced by employee advocates and seemingly supported by the four liberal, Democratic appointees on the court, is that the measure should be construed broadly to effectuate its purpose of proscribing bias in the workplace unrelated to job performance. They note that societal views of sexuality have changed since the act went into effect two generations ago, and the law ought to keep up with social changes, much like the landmark 2015 “same-sex” marriage ruling in in Obergefell v. Hodges, 135 S.Ct. 2584 (2015) and prior ground-breaking decisions granting rights to same-sex  individuals like the invalidation of state sodomy laws for consenting adults in the decision in 2003 in Lawrence v. Texas, 539 U. S. 558 (2003) overruling a contrary ruling   17 years earlier in Bowers v. Hardwick,478 U. S. 186 (1986) and the allowance of tax benefits for married same-sex couples in 2013 in U. S. v. Windsor, 570 U. S. 744 (2013).

Aligned against that position is the different view, supported generally by the business community and apparently accepted by some on the conservative wing of the tribunal, that Congress in 1964 did not intend, indeed did not conceive, of the law being stretched beyond its conventional man-woman focus, pointing to the refusal of Congress for some 25 years to adopt proposed legislation, formerly known as the End Discrimination Now Act (EDNA), that would have accorded LGBT protection. They further argue that if any extension of the gender-based prohibition is desirable, it should be enacted by Congress, not mandated from the bench.

The Trump administration, not surprisingly, has weighed-in against the employees, asserting that the term “sex” in the federal law is restricted to “biologically male or female … (not) sexual orientation.”

While the high court seems closely divided in the issue, some observers see Justice Neil Gorsuch, somewhat surprisingly, as the possible swing vote. Although staunchly conservative, his observations at oral argument  suggest he may be amenable, with some reservations, to join the liberals and allow all three cases to go forward in the lower courts.  His remarks from the bench during the hearing that sex seemed to be “in play” in the firing decisions and that the case was “really close, really close” heartened LGBT advocates and their supporters. But his caution that a ruling in their favor could cause “massive social upheaval” was somewhat troubling and puzzling as well, leading some to point out that the same could have been said for the high court’s  ground-breaking 1954 decision in Brown v. Board of Education, 347 U.S. 473 (1954) barring racial segregation in public schools. But that did not deter the jurists from ordering compliance with “all deliberate speed,” although the process frequently was deliberately obstructed and the speed often slow.

Minnesota matters

While the stage is set for a historic, probably closely decided ruling, which is expected to be issued next year, the Minnesota heritage of the high court’s LGBT litigation warrants attention.

The Supreme Court got its first peek at the concept of “same-sex” rights in a matter from Minnesota, and it didn’t like what it saw. Baker v. Nelson, 291 Minn. 310,191 N. W. 2d 1971) was the first to challenge the restrictions on marriage to opposite sex couples, a proscription upheld in 1971 partially on ecclesiastical grounds, with a Biblical reference by the Minnesota Supreme Court to marriage as depicted by the Book of Genesis in the Old Testament.

An appeal on equal protection   grounds to the high court was dismissively rejected in 1972 because, in the eyes of the jurists, it had a “want of a substantial federal question” worthy of its attention. 409 U. S. 810 (1972).

But the case was the precursor for a spate of “same-sex” marriage challenges in the courts and enabling legislation in a number of states, including Minnesota, during the first decade and-a-half of this millennium, paving the way for the historic Obergefell ruling that, incidentally, expressly overruled the Baker dismissal.

The next major stride in Minnesota  was enactment of an addition to the state Human Rights Act, the counterpart of the  federal law, extending its proscriptions against harassment  and bias on the basis of “sexual orientation” as well as gender identity in Minn. Stat. § 363A.03, subd 44.The measure, spearheaded  by University of Minnesota professor and State Senator Allen Spear, the first self-identified gay legislator in Minnesota, was the first of its  kind in the country, and  has since been followed by about  twenty other states and numerous other local jurisdictions.

Meanwhile, decisions of the state and federal courts in Minnesota began addressing workplace sexuality discrimination cases, with favorable outcomes for bias claimants.  The pattern began with a ruling in 1996 by the state Supreme Court in Cummings v.  Koehnen, 556 N.W.2d 586 (Minn. 1996) upholding a claim of “same-sex” harassment by a male truck driver by fellow men at a trucking facility in Rosemount.

However, a dissenting opinion would have dismissed the claim because the statute was not intended to reach same-gender misbehavior, presaging the arguments against the claimants in the current LGBT litigation.

The federal courts then jumped on the bandwagon, with trial and appellate judges here reaching the same conclusion that “same-sex” harassment is proscribed by federal law in a multiple decisions, highlighted by a ruling in 1997 by Judge Diana Murphy  of Minnesota in Quick v. Donaldson Co., 908 F.2nd 1372 (8th Cir. 1997).

Those decisions preceded the high court concurring a year later in Oncale v. Sundowners Offshore Services, 573 U. S. 75 (1998) establishing on a nation-wide basis what Minnesota courts had earlier recognized: the impermissibility of sexual-based discrimination and harassment regardless of the genders of the perpetrators or subjects.

That milieu, substantially derived from Minnesota law and lawsuits, forms the backdrop for the current Supreme Court LGBT litigation.  While its outcome is uncertain, one thing is assured: Minnesota has made its mark in addressing workplace discrimination and harassment due to sexuality.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.