Hundreds of LGBTQ people gathered in front of the U.S. Supreme Court on Oct. 8, the morning before the hearings of three employment discrimination cases considering whether firing gay and transgender people for their sexual orientation or gender identity goes against Title VII.
Blue and yellow HRC flags, rainbow flags and a blue and pink trans flag and signs sent messages like “We Will Not Go Back” and “Protect LGBT Workers Now.”
The nine justices heard the cases of Bostock v. Clayton County, Altitude Express v. Zarda and Harris Funeral Homes v. EEOC. Each case hinges on Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating against employees based on sex. Since the retirement of Justice Anthony Kennedy, who wrote the rulings in the three most significant wins for lesbian and gay people in 1993, 2013 and 2015, these are the first major LGBT cases to come before the U.S. Supreme Court (SCOTUS).
In the opening cases, Gerald Bostock, a Georgia child-welfare-services coordinator and Donald Zarda, an instructor for a skydiving company, contend that they were fired because they are gay. Zarda died in a skydiving accident in 2014, but his estate has continued his case. Stanford law professor Pamela Karlan represented both parties. Attorney Jeffrey Harris represented the employers.
The third case addressed gender identity. Aimee Stephens, former funeral director for Harris Funeral Homes, was fired in 2013 when she told her employer she was beginning the process of transitioning, planned on having gender-affirmation surgery and would be wearing the company’s female attire going forward. The EEOC previously won her case. Defending the case was David Cole of the ACLU. Arguing for the funeral home was John Bursch.
A third party — the Trump administration — provided yet another argument. U.S. Solicitor General Noel Francisco appeared as a “friend of the court” to argue for the employers in all three cases against the gay and trans plaintiffs.
Francisco’s presence exemplifies the concerted efforts by the Trump administration to thwart LGBTQ civil rights. It was the federal government — the Equal Employment Opportunity Commission — that argued for and won Stephens’ initial case against the funeral home. Francisco was effectively representing the federal government while arguing against the federal government.
The arguments were long and at times, contentious. Critical voices for the conservatives were Chief Justice John Roberts and Justices Neil Gorsuch and Samuel Alito. The most vociferous among the liberal justices were Elena Kagan and Stephen Breyer, both of whom pushed back against Harris and Francisco repeatedly.
Karlan faced questions from all sides as to how Title VII could be interpreted to cover sexual orientation. Justice Ruth Bader Ginsburg noted that in 1964, when the Civil Rights Act passed, homosexuality was still considered a mental illness. Karlan countered that Title VII has repeatedly been interpreted to include changing social mores and also now includes sexual harassment, which did not exist as a term or legal argument in 1964.
Karlan’s most succinct argument was that the court should rule based on the words of Title VII “as they were understood then, which is ‘men’ and ‘women.’ Title VII was intended to make sure that men were not disadvantaged relative to women, and women were not disadvantaged relative to men.”
Gorsuch, a staunch traditionalist, argued that if a person is fired because of their sexual orientation, that person’s sex is at least a “contributing cause.” This leads LGBTQ advocates to think he might lean toward the plaintiffs. Still, Gorsuch expressed concern about “massive social upheaval” if the court ruled in favor of the plaintiffs.
Roberts, who has been an occasional swing voter on social issues, wondered if the court was superseding the role of Congress. He also worried about how a decision might impact religious organizations. Alito seemed skeptical that the workers had cases at all.
Kagan argued that the language of Title VII “pretty firmly” backs gay workers’ claims.
Bursch was concerned about how the case would affect bathroom rules, trans women participating in women’s sports and trans women running domestic violence shelters for women.
Breyer dismissed Bursch, calling his list “a parade of horribles.” He said, “We are deciding simply whether discrimination against transgender people falls within Title VII’s ban on discrimination ‘because of sex.’”
One of the critical points in the arguments came when Francisco asserted that if the SCOTUS found for the plaintiffs, it would render a “complete victory to one side,” and would not address the issue of religious objections to hiring LGBT employees.
Francisco raised the 2015 Obergefell v. Hodges case that legalized same-sex marriage. He claimed that the majority opinion stated that “good and decent people” may object to same-sex marriage on religious grounds.
Justice Sonia Sotomayor interrupted Francisco’s assertion, asking when the SCOTUS should intervene to “stop invidious discrimination.” Sotomayor said that Title VII was explicitly meant to create a level playing field so workers would be treated equally. Sotomayor said, “gay people are still being fired just because of their sexual orientation. At what point do we say that Congress did address this?”
Andy Hoover, spokesperson for the Pennsylvania ACLU, said, “Everyone needs a way to support themselves and their family. No one should have to fear that they can be fired just because of who they are.”
Hoover said, “The public agrees that discrimination is against the law, and we need to make sure the Supreme Court and the President know it.”
Rulings in the Bostock, Zarda and Stephens cases are expected sometime next year.