Sunday, October 6, 2019

A Human Rights Lens on the Sexual Orientation Cases before the Supreme Court

On Monday, October 7, the U.S. Supreme Court will open its 2019-2020 term.  The Supreme Court is designed to resolve the hardest cases, of course, but even so, this term already promises an unusual number of contentious issues.  Much has already been written about the impact that this conservative Court might have on civil rights and civil liberties issues this term.  In addition, the rulings this term may further undermine U.S. adherence to its treaty obligations and to general human rights norms articulated in the Universal Declaration of Human Rights.  Further, in some cases -- for instance, the pending case concerning gun regulation -- the Court may also be asked to take note of the ways in which the U.S. is a human rights outlier.

On the first Tuesday of the term, the Court will hear three cases involving the question of whether Title VII bars discrimination on the basis of sexual orientation or transgender identity.  The ultimate question is one of statutory interpretation, i.e., what is the meaning of "because of . . . sex" in Title VII.  Similar language in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) -- to which the U.S. is a party -- has been construed to encompass discrimination based on sexual orientation and gender identity.  As stated by the UN Office of the High Commissioner for Human Rights, "[t]he legal obligations of States to safeguard the human rights of LGBT people are well established in international human rights law on the basis of the Universal Declaration of Human Rights and subsequently agreed international human rights treaties" and include "the right to be free from discrimination."

Among the many amicus briefs filed in the three cases, the brief of InterAct, an organization representing the interests of intersex individuals, draws heavily on human rights analyses to refute the employers' arguments that "sex" under Title VII should be defined rigidly. 

The venerable Charming Betsy doctrine of statutory construction is relevant here.  In 1804, Chief Justice Marshall wrote in the Charming Betsy case that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”  The doctrine applies whether or not a ratified treaty is deemed to be self-executing. 

One rationale for the doctrine is that the Court, a non-political branch, should not unnecessarily place the U.S. in the position of violating its international human rights obligations.  This rationale is quite pertinent to the three cases currently before the Court.  As a member of the UN, the United States's human rights compliance is regularly reviewed through the Universal Periodic Review process.  Should "because of sex" be construed to exclude sexual orientation or gender identity, the U.S. will undoubtedly be questioned about its backsliding.  The U.S. is also required to make periodic reports to the UN Human Rights Committee about its compliance with the ICCPR, and the UN's Special Expert on Sexual Orientation and Gender Identity monitors worldwide compliance with these human rights.   Again, these international monitors would view the denial federal protection against employment discrimination to LGBTQ and transgender individuals as a deliberate retreat from human rights, for which the U.S. would be condemned internationally.

Charming Betsy says, it's not for the Court to make this decision if the language of the statute can support a definition that meets international human rights standards.  "Because of . . . sex" is clearly susceptible to this broader construction -- indeed, this construction has previously found favor before many federal courts.  Given the stakes, including the serious international repercussions of defaulting on our human rights commitments, the Court should steer away from adopting a more restrictive definition, and leave the matter to the legislature.  

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