- The Supreme Court heard two cases regarding LGBTQ rights yesterday, marking the first time that has happened since Justice Anthony Kennedy retired.
- Justices will determine whether Title VII of the Civil Rights Act of 1964, which made it illegal for employers to hire or fire an individual because of their gender, extends to sexual orientation or transgender status.
- The court seems divided on the issue, with Justice Neal Gorsuch, an appointee of President Donald Trump, appearing to side with liberal justices.
Three cases before the Supreme Court could have major implications for the LGBTQ community, as justices heard opening statements yesterday that could have major implications for how the Civil Rights Act of 1964 is applied in the workplace.
The highly anticipated cases are likely to test how the federal law applies when an employer wants to fire someone because of their sexual orientation or transgender status. Plaintiffs in the case argue that both of those instances violate the Civil Rights Act.
"The attempt to carve out discrimination against men for being gay from Title VII cannot be administered with either consistency or integrity," Pamela Karlan told the court in her opening statement. "In the words of the en banc Second Circuit, it forces judges to … resort to lexical bean counting where they count up the frequency of epithets, such as 'fag,' 'gay,' 'queer,' 'real man,' and 'fem,' to determine whether or not discrimination is based on sex or sexual orientation."
Karlan, the co-director for Stanford University's Supreme Court Litigation Clinic, is representing two gay men who claim they were fired from a job because of their sexual orientation. Earlier in her opening statement, Karlan said there was "no analytic difference between this kind of discrimination and forms of discrimination that have been already recognized by every court to have addressed them."
In the first case based on sexual orientation, Gerald Lynn Bostock was fired from his county job after he joined a gay recreational softball league. He lost his case in federal district court, as well as the 11th U.S. Circuit Court of Appeals in Atlanta. For the second case, judges heard of the firing of skydiving instructor Donald Zarda. Zarda's claim is that he was fired after telling a woman he was preparing to go skydiving with that he was gay to assuage any concerns she had about being strapped to a man during a skydive. Though he lost his initial lawsuit, the 2nd U.S. Circuit Court of Appeals ruled in his favor.
Justices also heard opening statements in the case involving Aimee Stephens, a transgender funeral home director who says she was fired from R.G. & G.R. Harris Funeral Homes in the Detroit area after she came out to the funeral home's owner, Thomas Rost. She told him that she had been grappling with her gender identity for most of her life. She says the conversation came up when she planned to begin wearing dresses and skirts to work as an embalmer and funeral director. In this instance, the Federal Equal Employment Opportunity Commission took on her case, which lost in a district court but won in the 6th U.S. Circuit of Appeals in Cincinnati.
With approximately 11.3 million American adults identifying within the LGBTQ spectrum, according to the Williams Institute at the UCLA School of Law, these Supreme Court cases will have widespread implications, regardless of the decision.
Justices split on where they stand
Though the court's final determination isn't expected until early summer 2020, justices have already begun weighing in on the cases that will impact approximately 8.1 million LGBTQ workers.
This recent batch of cases marks the first time that the court has had to weigh in on LGBTQ rights since Justice Brett Kavanaugh's appointment to replace Justice Anthony Kennedy. Kennedy, a Ronald Reagan appointee, famously defended gay rights in the 2015 ruling that legalized same-sex marriage in the United States, despite his conservative views.
Justice Ruth Bader Ginsburg, considered a liberal judge on the Supreme Court, pointed out that Congress originally hadn't considered sexual harassment when it was addressing the Civil Rights Act in 1964 and that the courts had to step in to fix that issue. Meanwhile, fellow liberal judge Sonia Sotomayor asked, "At what point does a court continue to allow invidious discrimination? We can't deny that homosexuals are being fired just for who they are."
While Kavanaugh occasionally asked questions during the hearings, Justice Neil Gorsuch, the other appointee of President Donald Trump, seemed to side with the more liberal justices during the hearing. While speaking to ACLU lawyer David Cole, he said that he was "with you on the textual evidence," admitting that "it's close ... very close." Based on his statements, some intepret Gorsuch to be saying he felt that Title VII of the Civil Rights Act covers gay and transgender employees because it bars employment discrimination "because of sex" or "based on sex."
Gorsuch also wondered whether the court should weigh the "massive social upheaval" that could happen if the justices sided with LGBTQ workers. He was also curious if this was something that Congress should handle, rather than the Supreme Court, which is something the Trump administration and employers say could be done through an amendment to Title VII. With the Supreme Court split, Gorsuch could ultimately be the deciding vote.
Potential impact on the workplace
While these three cases will have lasting effects on a large segment of the American population, a ruling in favor of the plaintiffs would make workplace discrimination based on a person's transgender status or sexual orientation illegal.
Federal law currently prohibits discrimination based on a person's sex. Legislation is currently pending in Congress that could amend Title VII to include LGBTQ individuals, but it's unlikely that it will pass the Senate.
Today, 22 states currently have laws on the books that prohibit such forms of employment discrimination, with seven more extending the protection to public workers. If the Supreme Court rules against the plaintiffs, those laws would still be in effect.