When the Supreme Court was considering the issue of same-sex marriage in 2015, almost everyone was paying attention. Couples who had been denied the right to marry were hoping the Court would come to their rescue; liberals were dreaming of a proclamation of a new civil right; conservatives were dreading what would happen to institutions they care about. It seemed like the world was watching.
On Tuesday, the Supreme Court is hearing arguments about another LGBT rights issue, cases with undeniably greater importance and impact, and yet, almost no one’s talking about it. Yes, we are slammed every day (every hour!) with news of President Trump and his latest scandal, so we live in a different world than we did in 2015, when non-Presidential news had an easier time breaking through. However, we should still take notice of what’s about to happen at the Supreme Court this week and whenever the Court winds up ruling on the issue.
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Here’s the basic issue: Can your boss fire you because you are gay or because you are trans? As important as the right to marry was, both in terms of people’s actual lives and symbolic acceptance of gay people, this issue is even more important. Why? For the plain reason that, compared to the small percentage of gay people who are married or want to get married, almost every LGBT person will, at some point in their lives, be employed. It’s simple numbers.
Even though it’s 2019 and gay people can get married, employment discrimination is still not clearly prohibited. If you look at the words of Title VII, the federal law that protects people from employment discrimination, you won’t find anything about “sexual orientation” or “gender identity.” Rather, the law prohibits discrimination because of “race, color, religion, sex, or national origin.” There have been many efforts over the years to change the law to add sexual orientation and gender identity to this list of characteristics that are off the table for employment decisions, but they have been stymied repeatedly by Republican opposition.
That means that LGBT people who are discriminated against at work are left with state law (some states do prohibit this kind of discrimination) or trying to argue that the current federal law, even though it doesn’t explicitly say so, actually does prohibit discrimination based on sexual orientation and gender identity.
On Tuesday, the Supreme Court will hear argument in three cases raising this claim. Two cases, being argued together, raise the issue of discrimination based on sexual orientation. In Altitude Express v. Zarda, a skydiving instructor claimed he was fired because he was gay. In Bostock v. Clayton County, a Georgia county employee claimed the same. The third case, Harris Funeral Homes v. EEOC, involves someone fired based on her gender identity, a trans woman fired by a funeral home.
All three of these cases ask the Court to interpret the word “sex” in Title VII. The employees in each case argue that this word covers more than just your traditional sex discrimination claim, where a woman is fired or treated differently at work because her boss doesn’t want women around or when a woman is sexually harassed. Rather, the word includes sexual orientation and gender identity for the simple reason that, even though they are each separate parts of a person’s identity, they are inextricably related to sex.
To get more specific, there are three arguments the employees are going to be making to the Court. First, that discrimination based on sexual orientation treats people differently because of their sex because if, say, the fired gay men, who were attracted to men, were actually women, they would not have been fired for being attracted to men. Thus, Bob is fired because of his sex because he is attracted to Dan, whereas if Bob were Barbara, she wouldn’t. Second, that gay men and lesbians as well as trans people who are fired because of their identity are really being fired for failing to live up to gender stereotypes — for gay men and lesbians, that they should be attracted to, respectively, women and men (and not the other way around); for trans people, that they should live their lives in accordance with their gender assigned at birth. And third, for gay men and women, that they are being discriminated against because of the sex of the people they romantically and/or sexually associate.
Despite all three of these arguments being well supported in the case law, the federal courts have reached varied results in cases raising these issues. The Trump administration has also weighed in on these cases, filing briefs in both arguing against protection under Title VII, claiming it’s perfectly legal to discriminate against LGBT people.
When the Court hears these blockbuster cases Tuesday, all eyes will be on the Court’s conservative Justices. Three of the five of them — Clarence Thomas, John Roberts, and Samuel Alito — ruled against same-sex marriage. Does that mean they will rule against the LGBT litigants this time? The other two conservatives, Neil Gorsuch and Brett Kavanaugh, are new Trump appointees who have not yet ruled on any issues involving LGBT rights.
For all five of the Court’s conservatives, these cases present a serious test: stick with their conservative political ideology or go with their usual method of reading statutes based on the plain text of the law. If they follow politics, they will rule against LGBT rights but all-but ignore the word “sex” in the statute. But if they read the word “sex” as it should be read, they will be abandoning their politics.
Whatever happens with this conservative dilemma, the cases being argued tomorrow are of monumental significance. A ruling for the employees will mean that LGBT people will be protected from discrimination at work and possibly even beyond. Many other laws protect against sex discrimination, such as in housing or education, and it would be an easy case to make to apply an employment ruling to these other contexts. A ruling against the employees could be disastrous, both in putting the Court’s stamp of approval on bigotry but also in possibly gutting various protections against sex discrimination.
We won’t know the outcome this week, but we will get a glimpse into what the Justices are thinking on these important issues. Amidst everything going on in the world today, everyone should be devoting some of their attention to these cases. Because the life of virtually every LGBT person will be affected.
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