WASHINGTON — Can employers legally fire people simply because they’re gay, lesbian or transgender?
That is the question at the crux of a trio of cases that will come before the U.S. Supreme Court on Tuesday — the second day of its new term.
At the heart of Tuesday’s cases are Aimee Stephens of Michigan, a transgender woman, and two gay men, Gerald Bostock of Georgia and Donald Zarda of New York.
Plaintiffs argue that federal laws that ban sex discrimination in the workplace encompass discrimination on the basis of sexual orientation and gender identity. Michigan Attorney General Dana Nessel has filed a brief, along with 20 attorneys general, agreeing with this assessment.
Defendants — and allies, including the President Trump administration — argue that laws don’t apply to LGBTQ people.
The law at issue — the Civil Rights Act of 1964 — bans discrimination on sex, race, and other characteristics, but does not specifically mention sexual orientation or gender identity. The Equality Act, which would amend the law to specifically name those characteristics passed the U.S. House in May, but is not expected to pass the Senate.
The cases have major implications for the country.
Almost 5% of U.S. adults — more than 11 million people — identify as lesbian, gay, bisexual or transgender, and many report workplace discrimination.
The high court legalized gay marriage in 2015, but more than half of states, including Michigan, don’t have statutes protecting LGBTQ people from workplace discrimination.
There’s been another push this term to expand Michigan’s Elliott-Larsen Civil Rights Act to include LGBTQ protections, backed by Gov. Gretchen Whitmer and lawmakers. However, GOP legislative leadership has repeatedly said they’re not interested in pro-LGBTQ legislation.
Stephens, a former funeral director and embalmer at R.G. & G.R. Harris Funeral Homes in the Detroit area, was fired in 2013 after notifying her boss she intended to transition from male to female. She filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), which filed a complaint against the funeral home in 2014.
Harris Funeral Homes argues that Title VII of the Civil Rights Act doesn’t protect people on the basis of gender identity, but a federal appellate court disagreed.
Bostock and Zarda, meanwhile, also contend that they were fired in violation of Title VII’s protections. Bostock, a social worker, lost his job after joining a gay softball league, and Zarda, a skydiving instructor, was fired after informing a customer of his sexual orientation. Zarda, who died in 2014, is represented by his sister and partner.
One federal appeals court ruled that Zarda’s termination was tantamount to discrimination on the basis of sex and was therefore a violation of the Civil Rights Act. In Bostock’s case, another federal appeals court ruled that Title VII doesn’t apply to sexual orientation.
The cases — Harris Funeral Homes v. EEOC, Bostock v. Clayton County and Altitude Express v. Zarda — will shed important light on how the current court views LGBTQ rights. Eyes will be on Justice Brett Kavanaugh, who last year replaced Justice Anthony Kennedy, a pivotal swing vote on matters of social policy.
The high court is also slated to review controversial cases relating to immigration, health care, guns, abortion and other issues this term. Rulings aren’t expected until the spring or summer of next year and have the potential to influence the 2020 presidential elections.