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 Neil Gorsuch, a Donald Trump appointee who indicated he read the law’s text to cover LGBT discrimination but warned of a “massive social upheaval” should that interpretation prevail.
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.
Conservative Justice Samuel Alito was skeptical of the workers’ claims, which turn on Title VII of the 1964 Civil Rights Act.
“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 Pamela Karlan, the lawyer representing two gay men. “You’re trying to change the meaning of what Congress understood sex to mean and what everybody understood sex to mean in 1964.”
Justice Elena Kagan, one of the court’s four Democratic appointees, said the language of Title VII was “pretty firmly” on the workers’ side.
“Did you discriminate against somebody, against her client, because of sex?” Kagan said to Solicitor General Noel Francisco, the Trump administration’s top courtroom lawyer. “Yes, you did, because you fired the person because this was a man who loved other men.”
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 David Cole, the lawyer representing Aimee Stephens, the woman who sued in the gender identity case, what a judge should do when confronted with a statute that is “really close on the textual evidence.”
“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, Brett Kavanaugh, asked only a single question and didn’t tip his hand. Kavanaugh replaced the now-retired Justice Anthony Kennedy, who usually backed gay rights.
The court is considering the sexual orientation issue using the cases of Gerald Bostock, a former employee of a Georgia juvenile court, and Donald Zarda, a now-deceased skydiving instructor. Both men sued claiming they were fired because they were gay.
Stephens was fired from her job as a Michigan funeral home director after telling the owner she was preparing to live openly as a woman.
Chief Justice John Roberts expressed concern about the potential impact on religious organizations should the workers win. He said most states with laws banning LGBT discrimination had exempted religious groups, something he suggested the Supreme Court might not be able to do.
“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 Sonia Sotomayor called a “big issue right now raging the country.”
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.”
Justice Ruth Bader Ginsburg said the court has already read Title VII protections more broadly than Congress envisioned, as when the court said the law covered sexual harassment. “No one ever thought sexual harassment was encompassed by sex discrimination back in ’64,” Ginsburg said.
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 Barack Obama was president, the Equal Employment Opportunity Commission said sexual orientation discrimination was covered under Title VII.
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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