There are now six different cases implicating LGBTQ rights sitting before the Supreme Court. While the conservative-majority Court has not yet agreed to hear any of them, a circuit split between two of the cases and the fact that President Trumpâ€™s transgender military ban is at the heart of another strongly suggest at least one of them will advance to oral arguments.
The cases span a variety of different issues, including employment, education, military service, and public discrimination. At the heart at most of them is a question about whether discrimination against LGBTQ people counts as discrimination on the basis of â€śsex.â€ť If the Court rules against queer people in just one of them, it could set a precedent that hinders LGBTQ equality across all of the different issues.
Such a decision would be the largest blow to queer rights since the Court upheld sodomy laws 32 years ago.
Two of the cases before the Court address the question of whether itâ€™s legal to fire someone for being gay. Two different federal appellate courts arrived at different conclusions, increasing the likelihood that the Supreme Court will hear the cases to resolve the dispute.
InÂ Bostock v. Clayton County, Georgia, a gay man argued that he was fired because of his sexual orientation. The U.S. Court of Appeals for the Eleventh CircuitÂ dismissed Gerald Lynn Bostockâ€™s caseÂ over a 1979 precedent, even though several Supreme Court cases since then have undermined that ruling, including a case that recognized â€śsex stereotypingâ€ť as a form of sex discrimination as well as a case that recognized same-sex sexual harassment as sex discrimination. The Eleventh Circuit insisted that â€śsexual orientationâ€ť enjoys no recognition under Title VIIâ€™s employment protections on the basis of sex.
Meanwhile, this past February, the U.S. Court of Appeals for the Second Circuit arrived at the exact opposite conclusion inÂ Zarda v. Altitude Express. In that case, the appellate court found that skydiving instructor Donald Zarda, now deceased,Â wasÂ illegally firedÂ for being gay under Title VII. The Trump administrationÂ had argued otherwise.
With this split in how to interpret federal law, it seems highly likely that the Supreme Court will want to resolve the conflict. While there areÂ several compelling argumentsÂ that discrimination on the basis of sexual orientation inherently requires making determinations on the basis of sex, itâ€™s not clear that there are five justices who will agree.
While theyâ€™re at it, the Court may also considerÂ R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, a similar case about whether Title VIIâ€™s â€śsexâ€ť protections include discrimination on the basis of gender identity. The U.S. Court of Appeals for the Sixth Circuit agreed this past March that a Michigan funeral homeÂ violated the lawÂ when it fired employee Aimee Stephens for being transgender.
The Trump administration recentlyÂ filed a brief in this caseÂ arguing that the Supreme Court should overturn the Sixth Circuitâ€™s decision and rule that itâ€™s legal to fire someone for being trans. But the administration also argued that the Court should considerÂ ZardaÂ orÂ BostockÂ first â€” in other words, that it should resolve the question of whether sexual orientation is protected before it takes up gender identity.
In any of these cases, a ruling narrowly defining â€śsexâ€ť could set back employment rights for the entire LGBTQ community.
Trans military ban
On Friday, the Trump administrationÂ asked the Supreme CourtÂ to take the reins on the four different court battles over President Trumpâ€™s ban on transgender people serving in the military. The administration has lost in all of these different cases, including before two appellate courts, but it is now asking the Court to combine them all into the caseÂ Trump v. Karnoski.
The request is an unusual step, one that attempts to skip over the standard appeals process. LGBTQ groups chided the administration for being so desperate to discriminate that theyâ€™re willing to flout judicial norms and procedures. Nevertheless, given the Courtâ€™s willingness to cater to executive powerÂ in the Muslim ban cases, it might similarly be charitable to Trumpâ€™s claim that banning transgender people somehow improves military readiness, even though thereâ€™sÂ no evidence to support that claim.
Just months after the Supreme Court grantedÂ a one-off victoryÂ to an anti-gay baker from Colorado, another bakery from Oregon is again asking the Court to grant it special permission to refuse service to same-sex couples. The details ofÂ Klein v. Oregon Bureau of Labor and IndustriesÂ are almost identical to theÂ Masterpiece CakeshopÂ case.
As ThinkProgress previously explained,Â Aaron and Melissa Klein â€” owners of Sweet Cakes by Melissa â€” are asking for even more from the Court than Jack Phillips did last year. They argue that business owners have a right to discriminate based on their religious beliefs â€” against any group, not just on the basis of sexual orientation. A ruling along those lines would not only greatly undermine LGBTQ protections, but nondiscrimination protections for all vulnerable groups.
While the Alliance Defending Freedom (ADF) is not defending the Kleins as it did Phillips last year,Â the anti-LGBTQ hate groupÂ is still heavily involved in this yearâ€™s round of cases. In addition to defending the funeral home in the transgender employment case, ADF is also representing a group of families challenging a Pennsylvania schoolâ€™s inclusive policies.
InÂ Doe v. Boyertown Area School District, ADF contends that allowing transgender students to use restrooms and locker rooms consistent with their gender identity somehow violates the privacy of other students. As such, theyâ€™re asking for a mandate that schools segregate trans students to single-use restrooms. Like in the employment cases with Title VII, ADF is also asking the Court to rule that Title IXâ€™s sex protections donâ€™t extend to transgender students.
If the Supreme Court were to take all of these cases and the conservative majority were to prevail in them all, 2019 could look radically different for LGBTQ people. Nationwide, itâ€™d become legal to fire them for who they are, to discriminate against them in schools, and to discriminate against them in public spaces â€” and several thousand transgender service members would lose their jobs.
For now, the Court isÂ delaying making any decisions.
This article was originally published at ThinkProgress on November 27, 2018. Reprinted with permission.
About the Author:Â Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news.