Protection from dismissal on the grounds of sexual orientation or gender identity was up for debate before the US Supreme Court this week, in the first three LGBTQ rights cases of the last 2 years. The cases referenced Title VII of the Civil Rights Act, which bans discrimination in hiring, pay, and dismissal on the basis of an individual’s “race, color, religion, sex, or national origin.”
Title VII became law in 1964, well before the gay rights movement, so LGBTQ+ people were not explicitly protected. Since, rights for LGBTQ+ people have been executive policy and so have varied; the Obama administration issued a memo advising the Justice Department that Title VII applied to transgender workers, advice reversed by the Trump administration in 2017 along with a wider push-back against transgender people’s rights. Since 28 states have no local protections for LGBTQ+ people, these varying federal guidelines remain the only legal defense against discrimination. This week’s court cases will finally define LGBTQ+ peoples’ federal rights.
Two of the cases are similar and relate to employment rights for sexual orientation. Bostock v Claymore County concerns a court official, Gerald Bostock, who worked with exemplary records for ten years before coming out by joining a local gay softball league. He was promptly fired for “conduct unbecoming of a county employee.” Claymore county alleges that Bostock abused county funds, but did not accuse Bostock until after he filed his complaint. The second case, Zarda v Altitude Express Inc, references a skydiving instructor, Donald Zarda, who claims he was fired for not conforming to the “straight male macho stereotype” after a customer complained.
Although sexuality is not directly mentioned by Title VII, Zarda and Bostock’s lawyers claim orientation is still protected. Their clients’ behavior – being attracted to other men – would not have caused their firings if they were women. Therefore, their firings constituted sex discrimination and breach Title VII. Employers, however, have maintained that such a change in interpretation is judicial overreach and should be within the purview of Congress instead.
The third case, Harris Funeral Homes v Equal Employment Opportunity Commission, involves Aimee Stephens, a transgender woman. After working with the funeral home for six years, she came out as trans and was fired two weeks later. Her lawyers argue that she was discriminated against on the basis of sex because she failed to fit the stereotypes of her biological sex. Previously, the Supreme Court has held that employers cannot discriminate against women for being insufficiently feminine. Therefore, since Stephens was not presenting as sufficiently male (i.e. conforming to her biological sex), she should not have been discriminated against either. Again, in oral arguments Harris Homes argued that extending protections to transgender people would be overreach, since they contend Congress has the exclusive right to update the Civil Rights Act’s meaning.
Unlike other LGBTQ+ rights cases, religious freedom has not been a primary issue, despite Bostock’s employer being represented by the Christian nonprofit the Alliance Defending Freedom, an organization designated by the Southern Poverty Law Center as an anti-LGBTQ+ hate group. Rather, the three employers are arguing that it is legal to dismiss people for their sexuality or gender identity for any reason.
The Court spent a significant amount of time discussing whether a change in the interpretation of the law to cover LGBTQ+ people would cause “social upheaval.” Both liberal and conservative justices referenced transgender peoples’ access to bathrooms, due to disputed concerns of violence from allowing biological men into women’s environments. This topic is a touchstone of the American debate on transgender rights, and was mentioned despite bathrooms not being explicitly linked to any of the three cases being considered.
How strongly the Court defers to Congress will be influenced by Justices Kavanaugh and Gorsuch, the two Trump-appointed justices seen as conservative picks that shifted the court to the ideological right. Since the retirement of swing vote Justice Kennedy, the Court’s opinion on LGBTQ+ rights has been especially unclear; this case will show how far the Court’s opinion has shifted.
Whatever the result, the outcome of these three cases will affect the lives of millions of Americans, whether or not they identify as LGBTQ+. If the Court finds in favor of the employers, similar arguments could be made across a range of other anti-discrimination laws, opening the way to LGBTQ+ persons losing equal access to housing, education, and sports events. Furthermore, dismissal for not conforming to gender stereotypes would become legal, allowing more forms of sex discrimination, such as penalizing men who are the primary carers for children, or women who are the primary source of income for a family. However, if the employees’ complaints are upheld, then LGBTQ+ people in 28 states would gain certainty about their legal position and protection in employment law, with more defined protections in other areas possibly following.