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One Week Ago: Supreme Court Considers Federal Protections for LGBTQ+ Employees

On October 8, 2019, three momentous cases were argued in the Supreme Court of the United States (SCOTUS) that every American should care about as the outcome will directly impact the lives and well-being of millions of LGBTQ + workers. The legal issue being argued is whether Title VII of the Civil Rights Act of 1964 (Title VII), which protects employees against sex discrimination, also protects gay and transgender employees from discrimination in the workplace.

Artwork by Art Lien, Courtroom Artist

You might think this issue has already been settled because you live in a state or city that has explicit protections prohibiting employers from discriminating against LGBTQ+ employees. However, for workers living in more than half of the states in this country, no such protections exist. In other words, employers can refuse to hire or fire an employee because they are uncomfortable with or are prejudice toward employees whose sexual orientation or gender identity is not one that they condone.

Who Are the Plaintiffs?

Donald Zarda, Gerald Bostock and Aimee Stephens each had long, exemplary work histories with their respective employers: a New York skydiving company, a county in the state of Georgia and a funeral home in Michigan. Then, all three were fired after their employers learned that they were gay (Zarda and Bostock) or transgender (Stephens).

Artwork by Art Lien, Courtroom Artist

What Happened at the Argument?

While The Court’s decision won’t be issued until next Spring, the arguments and questioning can help forecast which direction The Court might go…

Zarda and Bostock’s counsel (these cases were combined on SCOTUS’ docket because both address whether sexual orientation should be covered under Title VII) argued that the reason “sexual orientation discrimination” is “sex discrimination” is because differentiating between two employees on the basis of who they are attracted to is different treatment based on their “sex.” Take for instance the example given by Zarda and Bostock’s counsel: If you have two employees, “both of whom tell you they married their partner Bill last weekend, 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 the joyous event, that's discrimination because of sex…” as understood by the drafters of Title VII in 1964. It does not require any new understanding or adoption of LGBTQ + rights. This analysis is critical for Justices on The Court who adhere to “strict constructionism;” that is, reading the text of a law and following its plain meaning. The Justices seemed to easily grasp that argument and to consider it a meaningful basis to rule in favor of Zarda and Bostock.

In the third case, Harris Funeral Home fired long-time employee Aimee Stephens after she began to live openly as a woman (Stephens’ assigned sex at birth was male). The ACLU, who represents Stephens, made three arguments for finding that the word “sex” in Title VII applied to Stephens’ case: (1) her presentation as a female at work did not conform to the employer’s gender-based stereotypes about how a woman should look; (2) Stephens’ employer discriminated against her because she was assigned the sex of male at birth and would not have discriminated against her had she been assigned “female” at birth, and (3) Stephens’ employer discriminated against her because she changed her sex from male to female, similar to situation in which an employee changes their religion. For decades, lower federal courts have found the first argument applicable to cases involving sexual orientation and gender identity where employers rely on outdated sex stereotypes about masculinity and femininity as a basis to discriminate against them. Again here, the ACLU argued that SCOTUS does not need to expand the definition of “sex” under Title VII, but instead should read the word based on its plain meaning.

Artwork by Art Lien, Courtroom Artist

What Do We Know at This Point?

Early reports from lawyers who were present in the courtroom and a review of the arguments themselves, suggest a favorable outcome. Of course, until the decision is issued by The Court most likely in 2020, there are no guarantees. Our best guess is that Justices Breyer, Ginsberg, Kagan and Sotomayor will rule in favor of including sexual orientation and gender identity in the definition of “sex” under Title VII, thereby ensuring protection of LGBTQ+ employers from discrimination. From what we know about the politics and legal decisions previously written by Justices Thomas and Alito, it is unlikely they will vote in favor of Title VII coverage. In fact, Justice Alito essentially said as much at the oral argument. However, both Justice Gorsuch and Chief Justice Roberts seemed to be seriously grappling with the simplicity of both arguments which focus on the analysis that firing a gay or transgender employee is inextricably intertwined with outdated prejudices on the basis of gender or “sex.” It would take only one of their votes to push The Court to a 5-4 majority and a victory. This victory would not just be for Zarda, Bostock and Stephens, but for all Americans who should have the right to work and earn a living regardless of who they are attracted to or how they identify or express their gender. Being able to work safely and without fear of discrimination is a lynchpin in being able to access healthcare, housing, retirement and other benefits – it is truly essential to being able to function and participate as a member of our society.

We deeply hope that SCOTUS will make the right decision in these cases and rule that federal law must prevent homophobia and transphobia in employment. Regardless of the outcome, the Gender Equality Law Center will continue to fight for the rights of LGBTQ+ individuals in the workplace and in all areas of civil life to which cisgender and straight individuals have access without having to worry about who they love or how they identity or express their gender.

Check back for updates!

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