On the first week of its new term, the U.S. Supreme Court held two hours of intense arguments about whether the main federal job-discrimination law protects gay, lesbian, and transgender employees, with the justices expressing concerns about how their ruling might play out for restroom and locker room use by transgender individuals in schools or the workplace.
"[The] big issue right now raging the country is bathroom usage—same-sex bathroom usage,” Justice Sonia Sotomayor said during the Oct. 8 arguments.
It went without saying that that issue is raging most fiercely in public schools, where there have been numerous skirmishes in recent years about transgender students using facilities that align with their gender identities.
“Let me move beyond the bathroom to another example,” Justice Samuel A. Alito Jr. said later. “And it is not before us, but it will be coming. So a transgender woman is not permitted to compete on a woman’s college sports team. Is that discrimination on the basis of sex in violation of Title IX?”
David D. Cole, the American Civil Liberties Union lawyer representing a transgender employee, stressed that questions about transgender restroom use or sports participation won’t be answered by the court’s ruling in the cases before it.
“It may be that because Title IX recognizes concerns about competitive skill in contact sports, that it’s permissible,” Cole said in reference to the hypothetical exclusion of a transgender athlete. “It may be that it’s not permissible. But this case just asks, when you fire somebody because you say he was going to represent himself as a man, because she was using the name Aimee and that’s not permissible because he’s a man, is that sex discrimination? Yes, that is sex discrimination.”
Cole represents Aimee Stephens, a transgender woman from Michigan who alleges she was fired from her job at a funeral home after she announced her gender identity.
Cole spoke during arguments in R.G & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), in which the justices will decide whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against transgender people based on their status as transgender or based on sex stereotyping.
The family-owned funeral home is represented by Alliance Defending Freedom, the Scottsdale, Ariz.-based legal organization that has been heavily involved in the transgender issue at schools by representing students who claim their privacy rights are invaded when transgender students use restrooms or locker rooms aligning with their gender identities.
John J. Bursch of ADF, representing the funeral home, generally stuck to the employment question at the center of the case.
“Treating women and men equally does not mean employers have to treat men as women,” Bursch said. “That is because sex and transgender status are independent concepts.”
Sexual Orientation Cases
The justices first heard arguments in a consolidated pair of cases that raise the question of whether Title VII covers sexual orientation. Those cases are Bostock v. Clayton County, Ga. (No. 17-1618) and Altitude Express Inc. v. Zarda (No. 17-1623).
U.S. Solicitor General Noel J. Francisco, representing the Trump administration, argued in support of the employers in both cases.
“The issue is not whether Congress can or should prohibit employment discrimination because of sexual orientation,” he said. “The issue, rather, is whether it did so when it prohibited discrimination because of sex.”
Congress did not because, among other reasons, “sex means whether you’re male or female, not whether you’re gay or straight. So if you treat all gay men and women exactly the same regardless of their sex, you’re not discriminating against them because of their sex.”
Pamela S. Karlan, a Stanford University law professor representing gay employees who were allegedly fired over their sexual orientation, said: “When a employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII.”
Education groups, including the two national teachers’ unions and groups representing school boards and administrators, filed a friend-of-the-court brief supporting the employees and an interpretation of Title VII to cover sexual orientation and transgender status.
These cases are the first major LGBT cases taken up by the court since the addition of President Donald Trump’s nominees, Justices Neil M. Gorsuch, and Brett M. Kavanaugh.
Kavanaugh was mostly quiet during the two hours of arguments, asking only one question that did not tip his hand.
Gorsuch was an active questioner, at times expressing support for the employees’ arguments that the text of the Title VII should be read expansively. But he also seemed concerned about the implications of the court’s ruling.
“At the end of the day, should [a judge] take into consideration the massive social upheaval that would be entailed in such a decision” to broadly read Title VII, Gorsuch said, “and the possibility that Congress didn’t think about it” and that it is more appropriately a “legislative rather than a judicial function?”
Sotomayor, speaking toward the end of the two hours, suggested to Francisco that the court has a duty to step in when it sees invidious discrimination that is covered by the text of Title VII.
“We can’t deny that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs poorly, not because they can’t do whatever is required of a position, but merely because they’re a suspect class to some people,” she said.
“They may have power in some regions, but they are still being beaten, they are still being ostracized from certain things,” Sotomayor added. “At what point does a court say, ‘Congress spoke about this, the original Congress who wrote this statute told us what they meant. ...’ At what point do we say we have to step in?”
Decisions in the cases are expected by the end of the court’s term in late June.
A version of this article appeared in the October 23, 2019 edition of Education Week as Supreme Court Hears Three Cases on Rights of LGBT Employees