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Supreme Court to Hear Cases on Bias Against L.G.B.T. Workers Supreme Court Hears Cases on Bias Against L.G.B.T. Workers
(about 7 hours later)
WASHINGTON — The Supreme Court will hear arguments on Tuesday on whether a landmark civil rights law protects gay and transgender people from workplace discrimination. WASHINGTON — Several justices from the Supreme Court’s conservative majority directed skeptical questions at a lawyer who argued on Tuesday that the landmark civil rights law banning discrimination on the basis of sex also applies to sexual orientation.
The court has not heard a gay rights case since the retirement last year of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major decisions protecting gay men and lesbians, including the 2015 ruling that established a constitutional right to same-sex marriage. Justice Samuel A. Alito Jr., who expressed the most outward doubts of any of the justices, suggested that it would be absurd to conclude that when Congress passed the Civil Rights Act of 1964, it intended to protect gay, lesbian, bisexual and transgender people. “You’re trying to change the meaning of what Congress understood sex to mean,” he told the lawyer, Pamela Karlan.
Employment discrimination based on sexual orientation and gender identity is legal in most of the nation. The justices will decide whether Title VII of the Civil Rights Act of 1964, which bars discrimination based on sex, also covers bias against gay and transgender people. If they rule that it does, such protections would be available nationwide. “It’s sexual orientation — it’s not sex,” Justice Alito said at another point during the arguments, underscoring that Congress and the American public have long understood these forms of discrimination to be distinct. Discriminating against someone because they are a man or a woman, he said, is not the same as discriminating against someone for being gay or lesbian.
The cases before the justices on Tuesday are expected to provide the first indication of how the court will approach gay rights since two appointees of President Trump, Justices Neil M. Gorsuch and Brett M. Kavanaugh, joined the bench. Many expect the court to take a less expansive view since the retirement last year of Justice Anthony M. Kennedy, its swing justice and the author of all four of the major decisions protecting gay men and lesbians, including the 2015 ruling that established a constitutional right to same-sex marriage.
Ms. Karlan made the argument that the text of the law clearly protects people fired for their sexual orientation because one’s sex and the inevitable sex stereotypes that stem from it are at the root of the harm.
“When a man is discriminated against for being gay, he is discriminated against for not conforming to an expectation about how men should behave,” she said, adding that the same was true of women who are attracted to women.
Ms. Karlan gave the example of a hypothetical marriage to a man she called Bill that appeared to leave all the justices at a loss for words at one point during her 30 minutes of arguments. “When you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate this joyous event,” Ms. Karlan said, that is sex discrimination.
As the justices all sat silent for a moment, Ms. Karlan interjected that they must not have any further questions for her. Chief Justice John G. Roberts Jr. assured her that this was not the case. Like Justice Alito, Chief Justice Roberts seemed cautious about the prospect that the court would be extending new legal protections by expanding the definition of sex as it was written into the law. “How do we address that?” he asked.
Ms. Karlan’s reliance on hypothetical situations seemed to irritate Justice Gorsuch, who said she was not helping her case by pointing to “absurd examples.”
Justice Alito noted that Congress had had the opportunity to write sexual orientation into the country’s nondiscrimination statutes but had repeatedly failed to do so. In fact, he added, such legislation is stalled in Congress now. If the court indeed found that sexual orientation was covered under the 1964 law, he said, it would open itself up to the criticism that it was “acting exactly like a legislature.”
The lawyer who argued on behalf of the employers, Jeffrey M. Harris, opened his argument by noting that if Congress had meant to cover L.G.B.T. people, there would have been no need for states to address the question in their own laws, which some two dozen have done.
“Sex and sexual orientation are distinct and independent characteristics,” he said. “That’s just as true today as it was in 1964.”
Employment discrimination based on sexual orientation and gender identity is legal in most of the nation. When it issues an opinion in the case, the court will decide whether Title VII of the Civil Rights Act of 1964, which bars discrimination based on sex, also covers bias against gay and transgender people. If they rule that it does, such protections would be available nationwide.
Most federal appeals courts have interpreted Title VII to exclude discrimination against lesbian, gay, bisexual and transgender people. But two of them, in New York and Chicago, recently issued decisions ruling that discrimination against gay men and lesbians is a form of sex discrimination.Most federal appeals courts have interpreted Title VII to exclude discrimination against lesbian, gay, bisexual and transgender people. But two of them, in New York and Chicago, recently issued decisions ruling that discrimination against gay men and lesbians is a form of sex discrimination.
The Supreme Court is considering three cases on Tuesday in two hourlong arguments, one on a pair of lawsuits from gay men who say they were fired because of their sexual orientation and the second on a suit from a transgender woman who said her employer fired her when she announced that she would embrace her gender identity at work. The Supreme Court considered three cases on Tuesday in two hourlong arguments. The first, which Ms. Karlan argued, stems from a pair of lawsuits from gay men who say they were fired because of their sexual orientation. The second is based on a suit from a transgender woman who said her employer fired her when she announced that she would embrace her gender identity at work.
The cases concerning gay rights are Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623. The first was brought by Gerald Bostock, a child welfare services coordinator in Georgia who said he was fired after joining a gay recreational softball league. The United States Court of Appeals for the 11th Circuit, in Atlanta, ruled against him in a short, unsigned opinion that cited a 1979 decision that had ruled that “discharge for homosexuality is not prohibited by Title VII.”The cases concerning gay rights are Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623. The first was brought by Gerald Bostock, a child welfare services coordinator in Georgia who said he was fired after joining a gay recreational softball league. The United States Court of Appeals for the 11th Circuit, in Atlanta, ruled against him in a short, unsigned opinion that cited a 1979 decision that had ruled that “discharge for homosexuality is not prohibited by Title VII.”
The Second Circuit, in New York, came to the opposite conclusion in a case brought by Donald Zarda, a skydiving instructor who said he was fired because he was gay. His dismissal followed a complaint from a female customer who had expressed concerns about being tightly strapped to Mr. Zarda during a tandem dive. Mr. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.”The Second Circuit, in New York, came to the opposite conclusion in a case brought by Donald Zarda, a skydiving instructor who said he was fired because he was gay. His dismissal followed a complaint from a female customer who had expressed concerns about being tightly strapped to Mr. Zarda during a tandem dive. Mr. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.”
Mr. Zarda died in a 2014 skydiving accident, and his estate pursued his case. A divided 13-judge panel of the Second Circuit allowed the lawsuit to proceed. Writing for the majority, Chief Judge Robert A. Katzmann concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”Mr. Zarda died in a 2014 skydiving accident, and his estate pursued his case. A divided 13-judge panel of the Second Circuit allowed the lawsuit to proceed. Writing for the majority, Chief Judge Robert A. Katzmann concluded that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”
The second argument on Tuesday concerns the separate question of whether Title VII bars discrimination against transgender people. The case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, No. 18-107, involves Aimee Stephens, who was fired from a Michigan funeral home after she announced in 2013 that she was a transgender woman and would start working in women’s clothing.The second argument on Tuesday concerns the separate question of whether Title VII bars discrimination against transgender people. The case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, No. 18-107, involves Aimee Stephens, who was fired from a Michigan funeral home after she announced in 2013 that she was a transgender woman and would start working in women’s clothing.
“What I must tell you is very difficult for me and is taking all the courage I can muster,” she wrote to her colleagues. “I have felt imprisoned in a body that does not match my mind, and this has caused me great despair and loneliness.”
Ms. Stephens had worked at the funeral home for six years. Her colleagues testified that she was able and compassionate.Ms. Stephens had worked at the funeral home for six years. Her colleagues testified that she was able and compassionate.
Two weeks after receiving the letter, the home’s owner, Thomas Rost, fired Ms. Stephens. Asked for the “specific reason that you terminated Stephens,” Mr. Rost said: “Well, because he was no longer going to represent himself as a man. He wanted to dress as a woman.”Two weeks after receiving the letter, the home’s owner, Thomas Rost, fired Ms. Stephens. Asked for the “specific reason that you terminated Stephens,” Mr. Rost said: “Well, because he was no longer going to represent himself as a man. He wanted to dress as a woman.”
The United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled for Ms. Stephens. Discrimination against transgender people, the court said, was barred by Title VII.The United States Court of Appeals for the Sixth Circuit, in Cincinnati, ruled for Ms. Stephens. Discrimination against transgender people, the court said, was barred by Title VII.
“It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” the court said, adding, “Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.”
All three cases will turn on how the justices interpret the 1964 civil rights law. There is little dispute that the lawmakers who enacted it did not specifically contemplate that it would apply to gay and transgender people. But the words they chose, the plaintiffs say, logically cover L.G.B.T. people.All three cases will turn on how the justices interpret the 1964 civil rights law. There is little dispute that the lawmakers who enacted it did not specifically contemplate that it would apply to gay and transgender people. But the words they chose, the plaintiffs say, logically cover L.G.B.T. people.
There is a second issue in the cases. In 1989, the Supreme Court said discrimination against workers because they did not conform to gender stereotypes was a form of sex discrimination. Lawyers for the plaintiffs say that discrimination against gay and transgender people relies on such stereotypes.There is a second issue in the cases. In 1989, the Supreme Court said discrimination against workers because they did not conform to gender stereotypes was a form of sex discrimination. Lawyers for the plaintiffs say that discrimination against gay and transgender people relies on such stereotypes.
The Equal Employment Opportunity Commission has said that Title VII protects gay and transgender people, but the Trump administration took a contrary view in the Supreme Court. Sex discrimination, lawyers for the administration said, applies only to biological sex.The Equal Employment Opportunity Commission has said that Title VII protects gay and transgender people, but the Trump administration took a contrary view in the Supreme Court. Sex discrimination, lawyers for the administration said, applies only to biological sex.