Three cases before the U.S. Supreme Court could determine whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against lesbian, gay, bisexual, transgender and queer (LGBTQ) individuals.
In oral arguments Oct. 8, justices heard the cases, two of which center on gay men allegedly fired from their jobs for their sexual orientation; the third concerns a transgender woman who allegedly was fired for her gender identity.
Twenty-three states prohibit discrimination based on sexual orientation and gender identity. But if the high court finds that federal law forbids such discrimination, that could lead to "massive social upheaval," said Justice Neil Gorsuch.
Yet if the Supreme Court rules that Title VII does not prohibit sexual orientation discrimination or gender identity discrimination, "millions of Americans would be shoved back into the closet because they would not take the risk of being their true selves in the workplace," said Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y.
"These are very important cases," she said. The Supreme Court may wait until this term concludes in June 2020 to decide them.
Justices React
The conservative justices seemed surprisingly subdued during the arguments, according to Larry Lorber, an attorney with Seyfarth Shaw in Washington, D.C. While Justice Samuel Alito Jr. said Congress has rejected attempts to amend Title VII to prohibit sexual orientation discrimination, Gorsuch asked whether the law might be interpreted to cover such discrimination.
All the cases could be said to involve sexual stereotyping, he said, though he voiced concerns about transgender individuals using a restroom that doesn't match their sex at birth. Chief Justice John Roberts Jr. had the same concern.
Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan all asked questions suggesting they think Title VII prohibits sexual orientation and gender identity discrimination.
Sexual Orientation Argument
The first two cases—Bostock v. Clayton County, Ga. and Altitude Express v. Zarda—were consolidated because they both involve the question of whether Title VII prohibits sexual orientation discrimination.
"When a[n] employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII," said Pamela Karlan, a law professor at Stanford Law School in Stanford, Calif. Both cases involved gay men, Gerald Lynn Bostock and Donald Zarda, allegedly fired for being gay. Zarda passed away before the case reached the Supreme Court. Karlan argued on behalf of both.
An employer that fires a man for dating men has, in the words of Title VII, "discriminated against the man because he treats that man worse than women who want to do the same thing," she said.
The discrimination is because of sex, which Title VII prohibits, "because the adverse employment action is based on the male employee's failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men."
She added, "There is no analytic difference between this kind of discrimination and forms of discrimination that have been already recognized by every court to have addressed them. For example, discrimination against men who are effeminate rather than macho."
Alito asked what people would think if the Supreme Court decided that Title VII prohibited sexual orientation discrimination. He then answered his own question: "What they will say is that whether Title VII should prohibit discrimination on the basis of sexual orientation is a big policy issue, and it is a different policy issue from the one that Congress thought it was addressing in 1964.
"Congress has been asked repeatedly in the years since 1964 to address this question. The Equality Act is before Congress right now. Congress has declined or failed to act on these requests. And if the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature. We might as well just take the Equality Act and issue that as our opinion."
However, Justice Sonia Sotomayor said his arguments "are not ones we typically would accept. For many years, the lodestar of this court's statutory interpretation has been the text of a statute, not the legislative history, and certainly not the subsequent legislative history." She added that the text of Title VII appeared to support the argument that the law prohibits sexual orientation discrimination.
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Gender Identity Argument
"The objection to someone for being transgender is the ultimate sex stereotype," stated David Cole, an American Civil Liberties Union lawyer who argued on behalf of a transgender woman, Aimee Stephens, allegedly fired for her gender identity, in R.G. & G.R. Harris Funeral Homes v. EEOC. "It is saying, 'I object to you because you fail to conform to this stereotype: the stereotype that if you are assigned a male sex at birth, you must live and identify for your entire life as a man.' "
Cole added, "That is a true generalization for most of us, but it is not true for 1.5 million transgender Americans."
Men and women who identify with their biological sex aren't disadvantaged by using their own restroom, Roberts said. But the issue "is quite different if you are dealing with a transgender individual who wants to use the restroom of their gender identity, contrary to their biological sex," he added.
Alito asked whether, under Title IX of the Education Amendments Act of 1972, a college could keep a transgender woman off a woman's college sports team.
Cole said the outcome of the employment case involving someone fired for being transgender wouldn't decide the bathroom question and noted that Title IX is a different statute.
But he noted that there are transgender male lawyers in the courtroom following the male dress code and going to the men's restroom. So, the notion that there would be upheaval if the court ruled in Stephens' favor is wrong, he said. "Transgender people follow the rule that's associated with their gender identity," Cole stated.