Supreme Court Debates Whether Discrimination by ‘Sex’ Includes Gay and Transgender Workers

October 8, 2019 by Dan McCue
Protesters outside the Supreme Court building in Washington, D.C. while the justices heard arguments on whether Title VII protections should apply to gay, lesbian and transgender individuals. (Photo by Dan McCue)

WASHINGTON – The cases came from New York, Georgia and Michigan.

In one, Donald Zarda, a Long Island man who taught skydiving for 15 years, was fired by his employer, Altitude Express, when a female customer complained that he had told her he was gay to make her feel less anxious about being strapped together with him during a tandem skydive.

In another, which was ultimately consolidated with the first, Gerald Bostock, an advocate for children in a Georgia juvenile court was let go after county officials learned he played in a gay softball league.

And in the third, William Stephen, a successful funeral director and embalmer with R.G. & G.R. Harris Funeral Homes, Inc., was told he no longer had a job in 2013 after he informed his boss he was transgender and would begin living as a woman named Aimee.

On Tuesday, the U.S. Supreme Court heard arguments on whether Title VII of the Civil Rights Act of 1964 forbids employers from firing people because of their sexual orientation or gender identity.

Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin and religion. It generally applies to employers with 15 or more employees, including federal, state and local governments.

Advocates for the petitioners, including Pamela Karlan, who argued the Zarda and Bostock cases before the justices, contend Title VII applies in their cases because the discrimination against them was unquestionably “because of sex.”

But the question has vexed lower courts, and appeared to trouble both liberal and conservative justices as they peppered Karlan with questions from the bench.

While Karlan attempted to convince the justices they should adhere to “contemporary approaches to textual interpretation,” the justices returned time and time again to the fact that Title VII was passed by Congress and signed by President Lyndon B. Johnson 55 years ago.

“Back in 1964, it could not have been in the minds of Congress that the protection of Title VII would extend to gays and lesbians,” said Justice Ruth Bader Ginsburg, who for the second day in a row spoke first from the bench.

“In many states, male gay sex was illegal, and the American Psychiatric Association equated gayness with mental illness,” she said.

Karlan acknowledged it was a different time, “the Mad Men era,” but Ginsburg’s assertion was quickly picked by Justice Samuel Alito who agreed that the law, at the time it was written, was not intended to apply to gay, lesbian and transgender individuals.

He suggested perhaps the most appropriate course of action would be that Congress revisit Title VII and expand its protections.

“The statute doesn’t need to be rewritten,” Karlan insisted. “Its meaning is clear.”

But none of the justices appeared to be ready to accept the attorney’s view.

Three of the Justices, Ginsburg, Neil Gorsuch and Sonia Sotomayor seemed concerned about how they’d decide future cases if they adopted Karlan’s interpretation of the law.

“What is the legal test for applying when harm is done and when it isn’t?” Sotomayor asked.

But Alito suggested the court might be getting ahead of itself.

“Congress has been asked many times in the years since Title VII was passed to address this issue,” he said, noting that the House actually did pass The Equality Act earlier this year, which specifically prohibits discrimination on the basis of sex, sexual identity and gender identity –the very thing Karlan was arguing for.

However, the bill has been in limbo since being sent to the Republican-controlled Senate in May.

“Congress has failed to act,” Alito said. “But if the court now took this up and applied Title VII to sex in the way you suggest, we’d be acting like legislators.”

Chief Justice John Roberts, sometimes considered the ideological center of the court, appeared concerned about religious employers facing increased liability if gay and transgender workers receive Title VII protection.

Justice Brett Kavanaugh asked only one question over the course of two hours of arguments for the three cases. Justice Clarence Thomas asked none.

Solicitor General Noel Francisco picked up on Alito’s assertion when it was his turn to speak.

“Congress has repeatedly extended protections to gays and lesbians without touching Title VII,” he said.

Francisco, who was arguing the Trump Administration’s position, also said the word “sex” as used in Title VII “means whether you’re male or female, not whether you’re gay or straight.”

By the end of the back-to-back hearings, court watchers were most intrigued by Justice Gorsuch’s statements, believing he might turn out to be the swing vote on the issue.

Though he’s known as a solid conservative, Gorsuch also has a reputation for going his own way. During the arguments he acknowledged a strong case had been made for siding with the fired workers, but also suggested he’s not quite there yet.

Gorsuch suggested that sex, as defined in the law, can be a contributing factor to someone being fired based on their sexual orientation. “Sexual orientation is surely in play here. But isn’t sex also in play here?,” Gorsuch asked, adding, “And isn’t that enough?”

“In what linguistic formulation would one say that sex – biological gender – has nothing to do with what happened in this case?” Gorsuch added.

Gorsuch, a conservative who has shown a propensity for carving out his own judicial path, said there are strong arguments favoring LGBTQ workers who were fired for their sexual orientation or transgender status, but he wasn’t quite ready to rule in their favor, calling the cases “really close.”

But Gorsuch later suggested the court would be overstepping its role if it ruled in favor of gay and transgender workers instead of letting Congress legislate on the subject, saying such it would be the type of ruling that could ignite “massive social upheaval.”

“It’s a question of judicial modesty,” Gorsuch said.

By this point, however, Justice Sotomayor appeared to have made up her mind.

“We can’t deny that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs poorly,” she said.

“How long must this invidious behavior go on,” she said.

Outside court, hundreds of LGBTQ demonstrators rallied, undeterred by a security threat that forced police to cordon off the street early Tuesday morning when two suspicious packages were noticed.

More than a dozen protestors were arrested, according to local media reports.

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