LGBTQ and the Supreme Court

On Tuesday, October 8th, the Supreme Court reserved its docket to hear oral arguments in three cases that are likely to be some of the most controversial of this term.  At issue in all three cases is whether federal employment discrimination laws that bar discrimination “because of sex,” protect gay, lesbian and transgender employees.

Up first were the cases of Donald Zarda and Gerald Bostock, which were argued together.  Zarda was a skydiving instructor who sometimes told female clients that he was gay in an effort to  make them feel more comfortable when they were strapped to him for a jump.  Zarda passed away in 2014, but was represented in court by the executors of his estate.  Bostock was a child-welfare-services coordinator for Clayton County, Georgia.  He had worked for the county for over a decade and had always received good performance reviews.  Both men claim they were fired because they are gay.

In federal court, they argued that firing them because they are gay violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of sex.”  The U.S. Court of Appeals for the 11th Circuit ruled against Bostock, finding that Title VII does not apply to discrimination based on sexual orientation.  Conversely, the U.S. Court of Appeals for the 2nd Circuit reasoned that discrimination based on sexual orientation is a “subset of sex discrimination” and thus, found in favor of Zarda.

Bostock and Zarda argued that the Supreme Court should find that the text of Title VII clearly applies to discrimination based on sexual orientation, because someone who is fired or otherwise the victim of discrimination because of their sexual orientation is undoubtedly a victim of discrimination because of their sex.  After all, they reasoned, a woman would not have been fired for being attracted to men.  Moreover, Title VII also bars employers from discriminating against individuals who do not conform to conventional gender stereotypes.  The idea that women should be attracted to men and men should be attracted to women is one such gender stereotype.

In support of their argument, the men pointed Oncale v. Sundowner Offshore Services, Inc., “a unanimous 1998 Supreme Court decision” which held “that same-sex sexual harassment can violate Title VII.”  Scalia, writing for the Court, said that although “male-on-male sexual harassment in the workplace was assuredly not the principle evil Congress was concerned with when it enacted Title VII . . . statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Bostock and Zarda’s employers argued that the above interpretation of the law would essentially “rewrite” Title VII.  They argued that Title VII does not bar discrimination based on sexual orientation, but instead bans employers from treating “employees of one sex better – or worse – than the other sex and doing so because” of their gender.  They went on to say that Title VII does not “reach – and certainly no one in 1964 would have thought it reached – employment actions based on sexual orientation, because those actions do not disadvantage employees of a particular sex.”  They also argued that this is an issue best suited for Congress, and not the courts, to resolve.  This argument seemed to have gained traction with some conservative justices who suggested that it was up to Congress, not the court, to clarify the scope of that protection for workers.  Justice Samuel Alito, for example, posited that some people might think that the justices were “acting exactly like a legislature” if the Court “interprets this 1964 statute to prohibit discrimination based on sexual orientation.”  Furthermore, the employers argued, Congress has repeatedly considered whether to make clear that Title VII bars discrimination based on sexual orientation, but it has, thus far, declined to do so.

Significantly, this is the first LGBTQ dispute the Court has heard since the retirement of Justice Anthony Kennedy last year.  As centrist-conservative, he joined the left leaning justices to create a majority in a number of cases to protect gay rights.  During oral arguments, there was no clear majority in favor of Bostock and Zarda, though Justice Neil Gorsuch did express some interest in aligning with the four liberal Justices.  He said it might be “close” that Title VII’s text covers gay or transgender individuals, but he worried about the “massive social upheaval” that could come from such a ruling.

Over three dozen separate “friend of the court” briefs were filed in support of Bostock and Zarda.  One such brief was signed by 206 companies, including giants such as Apple, Facebook, Walt Disney and Coca-Cola.  It stated that a ruling that Title VII bans discrimination based on sexual orientation would not be “unreasonably costly or burdensome” for employers.  Instead, they argued, that making clear that Title VII prohibits sexual-orientation discrimination would benefit businesses by providing “consistency and predictability” nationwide.

The last case heard on October 8th involved a transgender employee, Aimee Stephens, who worked as a funeral director and embalmer for six years at R.G & G.R. Harris Funeral Homes in Michigan.  When she first started working at the funeral home in 2007, she went by Anthony, dressed and appeared as a man.  In 2013, Stephens informed her employers that she intended to live as a woman for a year and would then have sex-reassignment surgery.  The funeral home fired her.  Thomas Rost, the owner of the funeral home testified that he fired Stephens because “he was no longer going to represent himself as a man.”  Rost, who is a devout Christian, believes that because Stephens “wanted to dress as a woman,” that she violated “God’s commands.”

The Equal Employment Opportunity Commission, which filed the original complaint against the funeral home, argued that firing Stephens because she is transgender violated Title VII.  The federal district court ruled in favor of the funeral home, agreeing that Title VII’s protections do not apply to transgender employees.  The U.S. Court of Appeals for the 6th Circuit reversed the lower court’s ruling.

Stephens argued that discrimination occurs “because of sex” when someone is treated differently based on his or her sex.  She contended that even if Title VII only applies to the sex an individual is assigned at birth, discrimination based on her transgender status is still a decision made “because of sex.”  She argued that had she been “assigned a female rather than a male sex at birth,” the funeral home “would not have fired her for living openly as a women.”  She also argued that the funeral home violated Title VII because she did not “conform to its owner’s views of how men and women should identify, look and act.”  Because the Supreme Court “has long recognized that discharging an employee because of the employer’s sex-based stereotypes violates Title VII,” Stephen argued that they should rule in her favor.

The funeral home argued that because they would have treated a female employee who wanted to dress as a man the same way as they treated Stephens, then there was no discrimination.  They also argued that what matters is what Congress intended the meaning of sex discrimination to encompass in 1964 when they enacted Title VII.

Solicitor General Noel Francisco, on behalf of the Trump administration, sided with the employers in all three cases.  He argued that Title VII’s bar on discrimination “because of sex” does not apply to discrimination based on sexual orientation or transgender status.  He argued that Title VII only bans employers from treating women less favorably than men in the same position, and vice versa.  He rejected Stephens’ argument that she was discriminated against because she didn’t conform to sex-based stereotypes.  He argued that “Title VII’s protections apply fully to transgender individuals, but that a plaintiff is transgender does not change the legal standard or analysis” because a transgender plaintiff still must show “that an employer treated members of one sex less favorably.”

The Supreme Court is likely to issue its decision on the above three cases in the spring or summer of 2020.