WASHINGTON — Key conservative justices on the U.S. Supreme Court appear open to the argument that federal law prohibits workplace discrimination based on sexual orientation and gender identity.
That issue was at the crux of a trio of cases heard by the court on Tuesday — the second day of its new term. The court’s answer — expected next year — will determine whether employers can legally fire people simply for being lesbian, gay, bisexual or transgender.
At the heart of the cases are Aimee Stephens of Michigan — a transgender woman — and two gay men, Gerald Bostock of Georgia and Donald Zarda of New York. The cases are Harris Funeral Homes v. EEOC, Bostock v. Clayton County and Altitude Express v. Zarda.
Stephens was fired after she informed her boss she planned to transition from male to female, and Bostock and Zarda were fired after their employers learned of the sexual orientation. (Zarda has since died; his case was advanced by his sister and partner.)
Lawyers for Stephens, Bostock and Zarda argued Tuesday that their terminations were unlawful under Title VII of the 1964 Civil Rights Act, which bans discrimination the basis of sex and other characteristics — but not sexual orientation or gender identify specifically.
And some conservative justices did not seem to slam the door shut on that idea.
To explore the legal argument, Justice Neil Gorsuch, President Donald Trump’s first appointee to the high court, proposed a thought experiment involving a dose of truth serum. If an employer who fired a gay man drank the serum, he asked, would he admit that he did so “because this person was a man who liked other men?”
He continued, “And isn’t that first part sex?” – a comment suggesting that he might be open to the argument articulated by some of his more liberal colleagues on the bench: the idea that discrimination on the basis of sexual orientation is inherently intertwined with discrimination on the basis of sex and would therefore be illegal under Title VII of the Civil Rights Act of 1964.
“Perhaps you’re right that sexual orientation is surely in play here,” Gorsuch said at another point during the arguments. “But isn’t sex also in play … and isn’t that enough?”
Chief Justice John Roberts, a conservative now regarded as the court’s swing vote on some hot-button social issues, also seemed open to the possibility of a decision that extends federal workplace protections to LGBTQ people. Some states that have extended such protections, he noted, have included exemptions for religious organizations.
“Now, if we’re going to be extending the understanding of what sex encompasses … how do we address that other concern?” he asked.
Justice Samuel Alito, another conservative, seemed to back a stricter “textual” reading of the law that interprets discrimination on the basis of sex as a separate and distinct concept from discrimination on the basis of sexual orientation and gender identity — and therefore not covered by federal protections.
Finding otherwise, he suggested, would amount to legislating from the bench — a line of argument that Gorsuch also pursued.
“If the Court interprets the 1964 statute to prohibit sexual orientation, we will be acting exactly like a legislature,” Alito said.
Congress, he noted, has the power to add sexual orientation and gender identity to civil rights protections and has repeatedly declined to do so. In fact, legislation that would amend the Civil Rights Act to specifically name those characteristics is currently pending in Congress.
Eyes were also on Justice Brett Kavanaugh — the conservative jurist who last year took the seat of Anthony Kennedy, a swing vote on matters of social policy. But Kavanaugh remained quiet, speaking only once during two hours of questioning and revealing little about his views.
‘At what point do we say we have to step in?’
The court’s liberal wing approached the cases with what seemed like greater clarity.
Justices stressed that sexual orientation and gender identity may be distinct concepts but are nonetheless intertwined with one’s biological sex — or, as Stephens’ lawyer put it, their “assigned sex at birth.”
And they put the 1964 Civil Rights Act in a larger cultural context, arguing that it was meant to support equality for all but, as are all laws, was restricted by the prejudices of its day.
“These statutes were all part of a civil rights movement that was designed to give, include in our society, people who had been truly discriminated against for the worst of reasons,” Justice Stephen Breyer stated. “And at that time, this civil rights statute … would have put in the category gay people, transgender people, a people who were suffering terrible discrimination.”
Over time, he continued, “this Court has moved away from that view finding it unconstitutional. … That’s a change that both explains why they didn’t put it in initially and explains why we should, other things being equal, interpret it to include gay people and transgender people now.”
Justice Sonia Sotomayor, another liberal jurist, echoed the sentiment. “At what point does a court continue to permit invidious discrimination? … At what point do we say we have to step in?
Questions about how the rulings would apply to other — and future — cases relating to sex, gender identity and sexual orientation also surfaced, such those relating to same-sex bathroom usage, fitness tests for certain jobs and uniform codes.
“You have a transgender person who rightly is identifying as a woman and wants to use the women’s bedroom, rightly, wrongly, not a moral choice, but this is what they identify with,” Sotomayor said. “Their need is genuine. … But there are other women who … would feel intruded upon if someone who still had male characteristics walked into their bathroom. That’s why we have different bathrooms. So the hard question is how do we deal with that?”
Millions could be impacted
The rulings in the cases will shed important light on how the current court views LGBTQ rights and will have a “profound effect on the lives of millions of people,” according to David Cole, Stephens’ lawyer and the legal director of the American Civil Liberties Union (ACLU).
Stephens, a former funeral director and embalmer at R.G. & G.R. Harris Funeral Homes in the Detroit area, filed a complaint with the Equal Employment Opportunity Commission (EEOC) after she was fired. The EEOC sued 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. Zarda, a skydiving instructor, was fired after informing a customer of his sexual orientation.
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 high court is also slated to review controversial cases relating to immigration, health care, guns, abortion and other issues this term — making it what some characterize as the most significant court term in recent years. The decisions will likely come out next spring or summer — and could influence the 2020 elections.
The rulings in these cases could have a direct effect on LGBTQ Americans and their families and loved ones.
Almost 5% of U.S. adults — more than 11 million people — identify as lesbian, gay, bisexual or transgender, and large percentages report workplace discrimination. More than 40% of lesbian, gay and bisexual people — and 90% of transgender people — have faced employment discrimination based on their sexual orientation, according to court documents.
The high court legalized gay marriage in 2015, but about half of states lack statutes protecting LGBTQ people from workplace discrimination, including Michigan. Depending on how the court rules, LGBTQ people in those states may have no legal protections 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.
Whitmer on Monday tweeted her support for Stephens in a video, saying, “Thanks for being so brave, and for making us proud. And just know, here in Michigan, we’ve got your back.”
Attorney General Dana Nessel, who while in private practice represented a lesbian couple who challenged Michigan’s same-sex marriage ban, has filed a brief arguing LGBTQ people are protected under the law, along with 20 attorneys general.
“Every Michigan resident deserves equal protection under the law,” Nessel tweeted. “That is precisely why @miattygen joined 22 AGs in July arguing that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against transgender people or on the basis of sexual orientation.”
Advance Editor Susan J. Demas contributed to this story.