Protestors gathered outside the Supreme Court of the United States on October 7th as the Court heard arguments for cases that could have a major impact on the livelihoods of LGBTQ+ workers. The issue in question surrounds the legality of employers to discriminate based on sexual orientation or gender identity. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of “sex,” but what exactly the term sex encompasses is unclear.
The employees in the first two cases, which were consolidated, argue that Title VII covers sexual orientation. Both Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda involve men who allege that they were fired because they were gay. Donald Zarda was fired from his job as a skydiving instructor after he mentioned his sexual orientation to a client; he passed away in a skydiving accident in 2014. Gerald Bostock spent 10 years as a child welfare services coordinator for Clayton County, Georgia until he was fired for unbecoming conduct shortly after joining a gay recreational softball league in 2013.
The lawyers for the employees argue that sex discrimination includes sexual orientation because if the employee was of the opposite sex, they wouldn’t be punished. Bostock and Zarda wouldn’t have been fired if they were women who dated men. Expecting that people are attracted to the opposite gender, and discriminating against them if they aren’t, can be interpreted as sex-stereotyping. The Supreme Court ruled that discrimination based on sex stereotypes is a form of sex discrimination in Price Waterhouse v. Hopkins.
Sex-stereotyping is also prominent in R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission. Aimee Stephens started working as a funeral director at the Harris Funeral Home in Michigan while she still presented as a man. When she came out to her boss and informed him of her plan to dress as a woman, she was fired. Supporters of Stephens say she lost her job because she didn’t conform to the stereotype that people should act in a way that’s considered consistent with the gender they were assigned at birth and should identify with that gender for their entire lives. Transgender status can also be considered sex discrimination because it necessitates treating someone differently based on their gender identity. Harris Funeral Homes accepted Stephens as a man but not a woman.
The employers contend that Title VII wasn’t originally written to refer to gender identity or sexual orientation; it’s up to Congress, rather than the judicial branch, to add those components through legislation. According to them, discriminating against LGBTQ+ people of all genders equally means that it isn’t a matter of sex discrimination.
The Trump administration sided with the employers, as did Arkansas and 14 other states. Support for the workers, in the form of signed briefs, came from a variety of places: 21 states and D.C.; 206 businesses, many of them giant corporations such as American Airlines; and professional organizations, including American Bar Association (ABA), the American Psychological Association (APA) and the American Medical Association (AMA).
Currently, the Equal Employment Opportunity Commission (EEOC) enforces federal anti-discrimination laws based on gender identity and sexual orientation. If the Supreme Court rules against the employees, however, this would change. That decision would have a disparate impact on people who live in certain states (largely southern ones) that lack their own anti-discrimination laws. Without federal protection, members of the LGBTQ+ community would have very few options when discriminated against in the workplace. A few cities and counties have taken matters into their own hands and banned discrimination. However, Arkansas is one of only three states that forbid additional protections for LGBTQ people at the local level. A 2015 ordinance in Fayetteville sparked a court battle for that reason.
The outcome of these cases is especially uncertain due to the retirement of Anthony Kennedy, the author of the court’s previous landmark decisions supporting LGBTQ+ rights. Kennedy’s replacement, Justice Brett Kavanaugh, didn’t clearly indicate his stance during oral arguments but is likely to vote for the employers. Justice Neil Gorsuch might be the deciding vote. He expressed support for the workers, telling Stephens’ lawyer that he was “with [him] on the textual evidence” but expressed concern about “the massive social upheaval” that might result from ruling in their favor.
However pressing the current debate is, the decision won’t be made for a while – it’s due by June 2020.