The U.S. Supreme Court in its upcoming session will hear arguments on whether anti-LGBTQ employment discrimination is sex discrimination.
The court will hear arguments on October 8 about whether LGBTQ workers are protected by the Title VII of the Civil Rights Act of 1964.
âThis is a momentous occasion. It is a pivotal moment and the public should be paying attention,â Omar Gonzalez-Pagan, senior attorney at Lambda Legal, a civil rights organization focused on LGBTQ people, told ThinkProgress.
âThese cases will affect the ability of LGBTQ people to be full members of society and to contribute to society by entering the workplace and be free of discrimination.â
In the worst case scenario, LGBTQ people would have to rely on a patchwork of state protections for employment protections and the Equality Act, a sweeping LGBTQ nondiscrimination bill passed by the U.S. House of Representatives in May, would become even more critical to protecting LGBTQ rights.
Twenty-one states,Â the District of Columbia, and two territories explicitly prohibit employment discrimination based on sexual orientation and gender identity.
Christy Mallory, senior counsel for the UCLA School of Lawâs Williams Institute, said, âThe court may decide that neither sexual orientation or gender identity discrimination are forms of sex discrimination prohibited by Title VII. This would remove existing non-discrimination protections for LGBT people under Title VII, which would have a particularly significant impact on LGBT people who live in states without statewide non-discrimination laws.â
There are three cases but two questions before the court.Â Zarda v. Altitude ExpressÂ andÂ Bostock v. Clayton CountyÂ have been consolidated to consider sexual orientation as sex discrimination andÂ Harris Funeral Homes v. EEOCÂ will consider discrimination against transgender people.
TheÂ Zarda case involved an employee named Donald Zarda being fired from Altitude Express, where he worked as a skydiver. He informed a woman he was gay while they were strapped to each other because he thought it would make her feel more comfortable. She later informed his employer that she wasnât happy with his sharing his being gay and he was subsequently fired. Zarda died in 2014 but his estate pursued the case.
TheÂ BostockÂ case focuses on Gerald Bostock, a child welfare services coordinator who was in a gay recreational softball league. He said his participation in the league and his sexual orientation became a problem with someone at work. Then he was fired for âconduct unbecoming of a county employee,â which he said was tied to his sexuality.
HarrisÂ involves Aimee Stephens, a trans woman, who was fired from her job at a funeral parlor after she informed the funeral director she worked for that she was transgender. She had worked in funeral services for nearly 20 years and receivedÂ positive feedbackfrom her employer.
The briefs from plaintiffs and their supporters have focused on a textualist understanding of the law â hewing closely to the original text of the Constitution, which the conservative justices may be more inclined to accept â rather than legislative intent, or what lawmakers had in mind in passing related legislation.
Several law professors have argued in their briefs that the court can look toÂ Price Waterhouse v. HopkinsÂ (1989), which says employers canât use sex-based stereotypes when taking employment actions.
Gonzalez-Pagan said one doesnât need to believe that anyone can be transgender. Despite the mountains of evidence, âthe reality is that in the discrimination in this case against this employee, Aimee Stephens, she did not conform to the expectations of her birth-assigned sex that the employer had.â
The Alliance Defending Freedom, a legal group whose attorneysÂ have linked marriage equality with a âdegradation of our human dignity,â andÂ filed a petition asking the court to hear one of these cases, has argued that lower courts âredefinedâ sex in the law. Mallory pointed out thatÂ Title VII itself does not define the term âsex.â
But plaintiffs and others can also argue that when discriminating against queer and trans people, you necessarily have to consider sex.
âThe factÂ is that in the arguments we are making, that plaintiffs are making, and others are making in this case, this is really about the text of the statute.Â This is really a very conservative argument â textualist and adhering to the letter of the law. And the reality is that when you consider somebodyâs same-sex attraction, somebodyâs transgender status â by definition you have to consider their sex,âÂ Gonzalez-Pagan said.
âYou areÂ impermissiblyÂ considering sex in taking an employment action. Thereâs no way around that. Itâs not that we are in this case proposing that there be another definition of sex. It is being elucidated in other cases and in scientific literature and the medical establishment and there is a consensus that is built but we donât even have to go there. Because either way, because no matter the definition you consider of sex, youâre still considering that sex in making that employment decision.â
Some historians have argued in anÂ amicus briefÂ that the understanding of sex in the 1940s, 50s, and 60s was such that LGBTQ people could have been understood to be included. They wrote, âThis broad understanding of sex, as evoking a range of sex roles, sexual expression, and sexual instincts, shaped public knowledge about LGBT individuals. Mid-twentieth century writers sometimes grouped LGBT people under the term âsex variantsââa term introduced by psychiatrist George Henry to mean primarily persons he considered homosexuals, though he sometimes also included individuals who wished to change their sex, regardless of their sexual desires.â
They added, âThe word âsexâ thus covered a broad range of meaning in the mid-twentieth centuryâone that encompassed the behavior, practices, and identities of LGBT individuals.â
Gonzalez-Pagan said that aÂ common argumentÂ against the Equal Rights Amendment in the 1970s was that by prohibiting sex discrimination, one could apply it to LGBTQ people.
â[O]pponents of LGBTQ equality that are trying to dismantle these protections recognized by EEOC and federal courts andÂ vast majority of publicÂ â what theyâre trying to do is have their cake and eat it too,â he said.
âThey are saying these protections arenât necessary because they will essentially protect LGBTQ people and now theyâre saying they donât cover LGBTQ people. So itâs really illustrative of their bad faith.â
He added, âItâs not about not whether we have arguments on our side, but whether the court will adhere preferences for statutory interpretation, or political ideology. Thatâs what really whatâs at stake here.â
This article was originally published at Think Progress on August 17, 2019. Reprinted with permission.