This week, the Supreme Court heard arguments whether gay or transgender workers are protected from discrimination under federal law.
Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of:
- National origin and
It applies to employers with 15 or more employees, including federal, state, and local governments, plus private and public colleges.
However, under the federal law that was passed more than 50 years ago, members of the LGBTQ community aren’t explicitly protected from discrimination.
In oral arguments Tuesday before the nation’s top court, attorneys debated 2 issues that have created a sharp split in the nation’s federal courts and an equally dramatic split between 2 federal agencies: Whether federal discrimination laws protect gay and transgender workers.
The Washington Post noted that “the arguments touched on some of the most controversial issues of the day — whether it would mean the end of single-sex bathrooms, whether men should be able to compete on female athletic teams, whether dress codes for men and women would become a thing of the past.”
Both The Washington Post and CNN reported, based on their observation at oral argument, that the liberal members of the High Court believe the federal law protects gay and transgender workers from discrimination.
CNN reported that “at the end of two hours of lively arguments, it seemed clear that the four liberals on the bench believed that federal employment law that bars discrimination based on sex includes claims of sexual orientation and gender identity.”
The Post noted that “there seemed little doubt that the court’s four liberal members would find that Title VII covered gay and transgender workers.”
But the lawyers will need to persuade a fifth member to get a majority. The Post said “lawyers for the gay and transgender individuals challenging their firings seemed to pitch their arguments to Justice Neil M. Gorsuch, a conservative who advocates a close textual reading of statutes.”
Justice Samuel Alito, a well-known conservative, asked a lawyer for the LGBTQ petitioners if they were trying to change the meaning of the word “sex” as Congress understood it to mean when the law was passed 55 years ago, CNN reported. CNN also reported that, seeming to indicate that Congress is the better venue for making such a change, Alito noted that Congress has repeatedly been asked to address the issue.
The Post also noted that the court’s newest member, Justice Brett M. Kavanaugh, asked only 1 question during the 2-hour session.
Divide among the courts and federal agencies
The Oct. 8, 2019, legal debates stem from federal appellate court decisions in a trio of cases: Bostock v. Clayton County, Georgia; Altitude Express, Inc., et al. v. Zarda, Melissa, et al. and R.G. & G.R. Harris Funeral Homes v. EEOC, et al.
Two of the cases, Bostock and Zarda, were combined to consider the question of whether gay workers are covered by Title VII.
In Bostock, Gerald Bostock, a long-term employee for Clayton County, Georgia, claims he was fired from his job as a social worker after he began participating in a gay recreational softball league. He said shortly after that, he was criticized for his participation in the league and for his sexual orientation and identity, including disparaging comments from co-workers. A 3-judge panel in the 11th U.S. Circuit Court of Appeals held that Title VII doesn’t prohibit discrimination on the basis of sexual orientation.
Donald Zarda, who died in 2014, said he was fired as a skydiving instructor after joking with a female client to whom he was strapped for a tandem dive that he was gay. In Zarda, the 2nd U.S. Circuit Court of Appeals held that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against workers based on their sexual orientation
The third case deals with transgender rights. Aimee Stephens, an employee at a funeral home, was fired shortly after she told her boss that she would begin presenting as a woman at work and would abide by the employer’s dress code for women. Stephens’ employment was terminated because of her transgender status as well as her failure to conform to sex stereotypes, in violation of Title VII, the 6th Circuit said. The court declared that “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”
The decisions of the courts in these and similar cases revealed a split in the federal courts. The 2nd , 6th and 7th Circuits have found legal protection for such workers under federal law but the 5th and 11th Circuits have not.
Federal agencies are also divided by the issue. The U.S. Equal Employment Opportunity Commission (EEOC) takes the position that Title VII prohibits LGBT discrimination. It decided in 2015 that Title VII’s prohibition against sex discrimination forbids employment discrimination based on gender identity or sexual orientation. However, the Trump Administration, through the U.S. Department of Justice, disagrees.
In a brief filed in Harris, the Justice Department argued to the Supreme Court that transgender persons are not protected from discrimination at work on the basis of their transgender status under U.S. federal law because Title VII “simply does not speak to discrimination because of an individual’s gender identity or a disconnect between an individual’s gender identity and the individual’s sex.”
Many large and well-known employers also weighed in with their opinions. AT&T, Amazon, Apple, Bank of America, Bloomberg, BNYMellon, Comcast, Deutsche Bank, eBay, Estee Lauder, Facebook, KickStarter and Levi Strauss are some of the companies that lent their names to a Supreme Court filing in the trio of cases. More than 200 U.S. corporations signed off on a brief supporting the employees. They urged the court to find that Title VII’s prohibition on discrimination based on sex includes both sexual orientation and gender identity. “Our nation’s employers and employees would benefit from this Court’s recognition that members of the nation’s large and productive LGBT workforce are protected from such sex-based discrimination in the workplace,” they said in the brief.
Federal lawmakers re-introduced a bill earlier this year that would extend Title VII protections to LGBTQ workers. “The Equality Act” was approved by the U.S. House of Representatives on May 17 and sent to the U.S. Senate on May 20 where it is still in committee.
States step up
But where the federal courts and federal agencies disagree over the issue and federal legislation is stalled in Congress, many state and local laws are in place that provide protections to the LGBTQ community. At least 21 states and the District of Columbia prohibit employment discrimination on the basis of sexual orientation and gender identity.