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With Kennedy’s Retirement, LGBT Workplace Protections Face Uncertain Future

Law.com Newsletter—Erin Mulvaney

[Newsletter excerpt] During Justice Anthony Kennedy’s three decades on the bench, he authored important and controversial decisions, including significant rulings supporting LGBT rights. Kennedy’s retirement comes at a particularly dynamic moment for these issues.

Federal appeals courts are divided over the scope of federal civil rights laws as they apply to LGBT workplace protections. The U.S. Equal Employment Opportunity Commission and gay rights advocates have pushed a broad interpretation of federal civil rights laws that includes “sexual orientation” as a form sex discrimination. Trump’s Justice Department has pushed back against that interpretation.

Two petitions arrived in recent weeks at the high court—and they could be acted on by the time the new term starts in the fall. Kennedy won't be on the court then—and we'll all closely watch whether the Trump administration and Congress can get a new justice seated by then.

“I’m still optimistic, but I would have been more optimistic had Kennedy been on the court,” P. David Lopez, a Washington-based Outten & Golden attorney and soon-to-be law dean at Rutgers University, tells me. Lopez, former Obama-era EEOC general counsel adds: “He was always the margin of difference. Social issues is where there was some hope in him for more progressive people.”

Lopez points out that the business community has pushed for broader protections for gay workers. He predicts that arguments in support of a broad interpretation of Title VII could have some resonance at the post-Kennedy Supreme Court.

“It won’t be a unanimous decision. You will have different sides of the coin. I still think it’s possible that the Supreme Court will follow what the Seventh and Second have done," Lopez says. "Those circuits have Democratic and Republican appointees.” Still, he acknowledged: “Not everyone agrees with me here.”