The Supreme Court justices sounded closely split Tuesday and a bit uncertain over whether to make it illegal under federal law for companies and public agencies to fire employees solely because they are gay, lesbian or transgender, with Justice Neil M. Gorsuch likely the deciding vote.
At issue is whether the Civil Rights Act of 1964, which forbids employment discrimination on the basis of “sex,” also prohibits discrimination based on sexual orientation and gender identity.
Gorsuch, President Trump’s first appointee to the high court, described the case as “really close.... Assume for the moment I’m with you on the textual evidence,” he told an American Civil Liberties Union lawyer representing a transgender woman who was fired from her job at a funeral home in Detroit.
But he also spoke of a “massive social upheaval” if the court were to rule for the LGBTQ employees, and he questioned whether the court should give a new and contemporary meaning to an old law. Isn’t that “more appropriate as legislative rather a judicial function. It’s a question of judicial modesty,” he said.
The exchange summed up much of the two hours of arguments in a momentous clash over civil rights in today’s workplace.
The four liberal justices, joined at times by Gorsuch, said they agreed that firing gay or transgender employees was discrimination based on sex as the law defined it. But others, including most of the conservatives, said that Congress in 1964 did not mean to outlaw discrimination based on sexual orientation or gender identity.
The argument featured a liberal-conservative role reversal of sorts. In the past, conservatives, including the late Justice Antonin Scalia, criticized liberals for having their arguments rely on the intent of Congress when passing a law -- whether to protect the environment, workers’ rights or civil rights -- rather than looking at the actual words of the law and their meaning as written.
On Tuesday, it was the liberals who focused on the actual words, while the conservatives argued that Congress never intended to protect gay, lesbian and transgender employees.
The Trump administration joined the case on the side of the employers who fired gay and transgender workers. Solicitor Gen. Noel Francisco directly challenged Gorsuch’s comment that it was a “really close” case on the law.
“I would like to respectfully argue that I don’t think it’s that close. Sex and gender identity, like sex and sexual orientation, are different traits,” he said. “This is an issue better left to Congress... I think it is important to allow the democratic process to resolve these issues.”
The House, under Democratic control, passed the Equality Act in May to amend the Civil Rights Act and to prohibit discrimination on the basis of “sexual orientation, gender identity, pregnancy [or] childbirth.” But the measure is stalled in the Republican-controlled Senate.
The landmark 1964 law had been understood for decades as protecting women from being denied jobs or promotions that went to men instead.
But in recent years, the U.S. Equal Employment Opportunity Commission, which enforces the law, decided it also protects gay, lesbian and transgender employees, concluding discrimination based on sexual orientation or gender identity is illegal discrimination because of sex. U.S. appeals courts in New York and Chicago similarly found the law protects gay and lesbian workers, while the Cincinnati appeals court said it protects transgender people.
Justice Ruth Bader Ginsburg argued that the court had repeatedly read the 1964 law to go beyond the problems of the 1960s. She cited the issue of sexual harassment, which did not emerge until the late 1970s. In the end, she said, the court had no trouble concluding that sexual harassment constituted discrimination based on sex.
Justice Samuel A. Alito Jr., a staunch conservative, took the opposite view. “We will be acting exactly like a legislature,” he said, if the court rules now that the 1964 act forbids discrimination based on sexual orientation.
Chief Justice John G. Roberts Jr. asked whether the court should be in the business of “updating old statutes” and said the word “sex” was understood at the time to mean men and women.
Stanford law professor Pamela Karlan, who argued on behalf of two gay men who were fired, said even with that understanding, the law should apply in this case.
She gave the example of “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.”
Gorsuch said several times that he could accept the argument that firing a gay or transgender employee involved sex discrimination. When a lawyer defended an employer who allegedly fired a gay employee, Gorsuch said he did not see how sex played no role.
“Let’s do truth serum, OK? Wouldn’t the employer maybe say it’s because this person was a man who liked other men? And isn’t that first part sex?” Gorsuch asked.
It is the first significant gay rights case before the high court since Justice Brett M. Kavanaugh replaced the retired Justice Anthony M. Kennedy. Though a moderate conservative, Kennedy wrote all of the court’s opinions upholding the rights of gays and lesbians, including the 2015 decision upholding the right to marry for same-sex couples. Kavanaugh said little during the arguments, so his views remain unclear.
At present, federal anti-discrimination laws do not protect gay, lesbian or transgender workers.
California and 21 other states forbid discrimination based on sexual orientation, and several other states have such protections for public employees. But there are few such protections in the South and much of the Midwest and Great Plains.
The justices heard arguments in three cases: two involving gay men and one involving a transgender woman.
Gerald Bostock said he was fired from his position as a child welfare services coordinator in Clayton County, Ga., not long after he joined a gay softball league. He appealed in Bostock vs. Clayton County after his discrimination suit was tossed out.
In 2010, Donald Zarda was fired from his job as a skydiving instructor in New York after jokingly assuring a woman customer she had nothing to fear from being strapped to him in the air because he was gay. He later died in an accident, but his sister has pursued his suit in Altitude Express vs. Zarda.
Aimee Stephens said she was fired from her job at a family-run funeral home in Detroit after she returned from a vacation as a woman. The EEOC sued on her behalf in R.G. & G.R. Harris Funeral Homes vs. EEOC.