The U.S. Supreme Court appeared divided over whether federal anti-discrimination law protects gay and transgender employees, as the justices heard arguments in a clash that will define the workplace rights of millions of people.
The two-hour session Tuesday suggested that LGBT-rights advocates have the support of the court’s four Democratic appointees but face uncertain prospects in attracting a fifth vote.
Their best chance could be Justice
The disputes, which the court will decide by early July, are the biggest LGBT cases since the Supreme Court legalized same-sex marriage nationwide in 2015. The fight concerns the reach of the main federal job-bias law, which explicitly bars discrimination on the basis of sex. The key question is whether employer decisions based on sexual orientation and gender identity qualify as sex discrimination.
Despite the same-sex marriage ruling, gay and transgender people can still be fired in much of the country. More than half of the 8 million LGBT workers in the U.S. live in states that don’t explicitly bar such discrimination under their own laws, according to the UCLA School of Law’s Williams Institute.
“Discrimination on the basis of sex in the sense that Congress understood it in 1964 is a different concept from discrimination on the basis of sexual orientation,” he told
“Did you discriminate against somebody, against her client, because of sex?” Kagan said to Solicitor General
Gorsuch, who focuses heavily on the words of disputed statutes, could be the pivotal vote. He said that sex was at least a “contributing cause” to a decision to fire someone because of sexual orientation.
But he also said that “the question is a matter of the judicial role and modesty in interpreting statutes that are old.” Gorsuch asked
“Should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that Congress didn’t think about it?” he asked.
Trump’s other appointee,
The court is considering the sexual orientation issue using the cases of Gerald Bostock, a
“If we’re going to be extending the understanding of what sex encompasses, and I know your argument that that’s not doing that, how do we address that other concern that at least I think almost every state legislature that has extended it has felt compelled to address?” the chief justice asked Karlan. Roberts directed all his questions toward the lawyers for the workers.
Roberts was one of several justices who asked what the cases could mean for single-sex bathrooms, a topic that Justice
Sotomayor said the Civil Rights Act was “born from the desire to ensure that we treated people equally and not on the basis of invidious reasons, and we can’t deny that homosexuals are being fired merely for being who they are.”
The workers and their supporters contend that sexual-orientation and gender-identity bias are forms of sex discrimination because they necessarily depend on the gender of the person being targeted.
The employers, as well as Trump’s administration, say lawmakers weren’t thinking about sexual orientation and gender identity when they passed Title VII. The employers say lawmakers have repeatedly tried -- and failed -- to broaden the law’s coverage.
The Trump administration shifted the government’s position when it said in a 2017 court filing that federal law doesn’t prohibit sexual-orientation discrimination. Two years earlier, when
Courts around the country are divided about the question. Federal appeals courts split in the two sexual orientation cases, siding with Zarda’s estate but ruling against Bostock.
The cases are Bostock v. Clayton County, 17-1618; Altitude Express v. Zarda, 17-1623; and R.G. and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, 18-107.
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