WASHINGTON (CN) – Attorneys representing two gay men and one transgender woman fired from their jobs urged the Supreme Court on Tuesday to rule that federal laws prohibiting discrimination because of sex cover their clients.
The cases the justices heard for more than two hours on Tuesday morning could reshape who receives protections from discrimination under Title VII of the Civil Rights Act of 1964, which bars discrimination “because of sex,” among other things. While the court has interpreted this prohibition in several different contexts, it has yet to address whether these protections extend to gay and transgender people.
In the absence of a ruling on the issue of whether Title VII prohibits discrimination based on sexual orientation and gender identity, the states have created a patchwork of regulations. Twenty-six states do not have laws prohibiting discrimination on either basis, though some of those fall under federal appellate courts that have interpreted Title VII to cover those traits.
Asking probing questions of both sides across two hours of argument on Tuesday morning, the justices did not betray how they are leaning in the case.
Some justices, most prominently Justice Samuel Alito, questioned whether the Supreme Court should decide a question so fraught with political implications when Congress and state legislatures are already in position to address the question.
“The Equality Act is before Congress right now,” Alito said. “Congress has declined or failed to act on these requests, and if the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature.”
Justice Neil Gorsuch expressed similar concerns, questioning how principles of judicial “modesty” should come into play when interpreting laws like Title VII.
In the context of sweeping transgender employees into federal anti-discrimination laws, the justices were similarly concerned about the practical consequences of their decision, with issues such as single-sex bathrooms and transgender athletes competing in sports sure to come up in the near future.
But at the same time, other justices wondered how the court could endorse discrimination against gay and transgender people when their circumstances are so similar to other groups the court has already ruled are covered under other laws.
Justice Stephen Breyer, for example, probed how the court could allow a business to fire a gay employee who marries a man while at the same time holding a business could not do the same to a Catholic person who married someone of the Jewish faith.
Justice Sonia Sotomayor asked how the court could not deny federal anti-discrimination protections to vulnerable people who “are still being beaten; they are still being ostracized from certain things.”
“At what point does a court say, Congress spoke about this, the original Congress who wrote this statute told us what they meant,” Sotomayor said. “They used clear words. And regardless of what others may have thought over time, it’s very clear that what’s happening fits those words. At what point do we say we have to step in?”
The first case centers on Gerald Lynn Bostock, who led the Court Appointed Special Advocates program in Clayton County, Georgia. Despite positive performance reviews, the county fired Bostock in June, shortly after he started promoting “Hotlanta,” a gay softball league in which he played. Bostock’s discussion of the league precipitated several negative comments before his firing.
Raising similar claims is Donald Zarda, a gay skydiving instructor from New York who died five years ago in a BASE-jumping accident.
Zarda routinely did tandem jumps, which saw him strapped tightly to a new jumper, and would often joke with female customers about his sexual orientation to ease their nerves. After making one such joke in 2010, however, a female customer allegedly interpreted it as cover-up to hit on her, and Zarda was fired after the woman’s boyfriend complained.
Both men challenged their dismissals under Title VII’s prohibition of discrimination “because of sex,” claiming they would not have been fired if they were women who were attracted to men.
Representing the men on Tuesday was Pamela Karlan, with the Stanford Law School Supreme Court Clinic. She argued that because her clients would not have been fired if they were women who were attracted to men, their employers unlawfully discriminated against them because of their sex.
“Title VII was intended to make sure that men were not disadvantaged relative to women and women were not disadvantaged relative to men,” Karlan said. “And when you tell two employees who come in, both of whom tell you they married their partner Bill last weekend, when you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex.”
Karlan also cited the Supreme Court’s decision in Price Waterhouse v. Hopkins, which held that Title VII prohibits sex stereotyping. She said her clients were clearly fired for not conforming to a stereotypical image of masculinity.
Attempting to draw the eye of the textualists on the court, Karlan argued that, despite what Congress might have intended when it passed Title VII, the prohibition against discrimination “because of sex” clearly protects people from being fired for their sexual orientation.
But attorneys defending the firings, including Solicitor General Noel Francisco, said Title VII is not so broad and that, so long as the employers treated gay men and lesbian women the same, there should be no violation.
Francisco made his own offering to justices with texualist sympathies, saying Congress has in other laws explicitly mentioned sexual orientation as a protected trait — something it declined to do in Title VII.
“The issue is not whether Congress can or should prohibit employment discrimination because of sexual orientation,” Francisco said. “The issue, rather, is whether it did so when it prohibited discrimination because of sex.”
Appealing to the text, Gorsuch questioned a portion of the argument the employers advanced, noting Title VII does not say sex has to be the only cause for someone’s firing in order for the law to apply
“The statute talks about a material causal factor or some formulation like that, not the sole cause, not the proximate cause, but a cause,” Gorsuch said. “And in what linguistic formulation would one say that sex, biological gender, has nothing to do with what happened in this case?”
After the court heard Bostock and Zarda’s cases, it turned to the case of Aimee Stephens, who was fired from her job at Harris Funeral Homes shortly after she came out as transgender. Stephens had been hired by the funeral home six years earlier when she was known as Anthony. It is undisputed she was fired after she handed her manager a letter informing him that she planned to start living as women with plans to undergo sex-reassignment surgery.
Because the funeral home had a strict dress code, this meant that Stephens would be trading the pant suits she wore previously for a skirt suit as required of all female employees. Thomas Rost, the owner of the funeral home, said this would distract the funeral home’s clients, prompting a lawsuit from the Equal Employment Opportunity Commission. A federal judge ruled in favor of the funeral home, but the Sixth Circuit reversed, holding Stephens’ claims were covered.
David Cole, an ACLU attorney who argued for Stephens, said his client also should be able to raise a claim of sex discrimination under Title VII, as she would not have been fired had she been assigned a female sex at birth.
He also argued that if the court sided with the worker in the Price Waterhouse case by saying her employer could not fire her because she did not conform to the stereotypical views of female behavior, Stephens should win her case on comparable grounds.
Cole also sought to calm the nerves of justices worried about the downstream effects of a ruling in his client’s favor.
“As I was saying, there are transgender male lawyers in this courtroom following the male dress code and going to the men’s room and the court’s dress code, and sex-segregated restrooms have not fallen,” Cole said. “So the notion that somehow this is going to be a huge upheaval — we haven’t seen that upheaval for 20 years. There’s no reason you would see that upheaval. Transgender people follow the rule that’s associated with their gender identity. It’s not disruptive.”
John Bursch, an attorney for the Alliance Defending Freedom who argued for the funeral home, disagreed with Cole, saying that ruling for Stephens would bring about fundamental change.
“Gender identity is a broad concept,” Bursch said. “You could have a male employee who identifies as a woman but doesn’t dress as a woman, looks like a man, showing up in the shower and the locker room and, again, the employer wouldn’t be able to do anything about that because, under Mr. Cole’s theory, but for the fact he was a man, he could be there. And it’s stereotyping to say men cannot be in the women’s bathroom.”
Arguing for the federal government on the side of the funeral home, Francisco argued that, so long as the funeral home treats its male and female employees the same, it cannot be held liable for discrimination. He also warned the justices that ruling in favor of Stephens would bring about a major social change that is better left to the legislative process.
“The legislative process is the process that allows those views to be respected as well as the very powerful views of my friends on the other side, which also should be respected,” Francisco said.