On October 8, the Supreme Court of the United States will hear three cases to decide if a federal law — Civil Rights Act of 1964 — protects employees across the United States from workplace discrimination because of sexual orientation and chosen gender identity.
Twenty-eight US states don’t have laws safeguarding the rights of LGBTQ people at workplaces.
Title VII of The Civil Rights Act of 1964 forbids employers from discriminating against employees on the basis of race, color, national origin, religion and sex.
The Supreme Court is now being called upon to decide if “sex” can be expanded to include sexual orientation and gender identity choices.
The three cases
One of the cases concerns Gerald Bostock, a child welfare services worker in Clayton County, Georgia. In 2013, Bostock was fired for “mismanaging public money”. He claims he was sacked for being gay — just months ago, he had joined Hotlanta Softball League, a gay recreational softball league, and his dismissal was preceded by homophobic slurs from his colleagues. Bostock lost in both the district court as well as the Court of Appeals, and his plea is now in the top court.
To be heard with Bostock’s is the case of Donald Zarda, a skydiving instructor who was fired in 2010 after he told a customer he was gay. Zarda said he revealed the detail to the customer to make her feel comfortable, as they were strapped tightly together for the skydive. His employers claimed he touched the woman “inappropriately”. Zarda sued Altitude Express Inc, and while a lower court ruled against him, in 2018, a Court of Appeals for the Second Circuit ruled that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination”. It is this ruling that Altitude Express Inc has challenged in Supreme Court. While Zarda died in 2014, his case is being pursued by his sister and his partner.
The third case, to be heard on the same day but not together, concerns Aimee Stephens, a Detroit funeral home worker, who was fired in 2013 after she told her employer she would come to work dressed as a woman. Stephens had been working at RG and GR Harris Funeral Homes for six years, dressing as a man. Her employer told her she was being fired for not following the dress code. Stephens claims she was willing to follow the code, but for female and not male employees. In her case too, the Court of Appeals for the Sixth Circuit in Cincinnati ruled that discrimination against transgenders was forbidden by Title VII. The funeral home has appealed this in the SC.
Law and letter
The Civil Rights Act is from 1964, and clearly bars discrimination on the basis of sex. Bostock’s lawyers have argued that sexual orientation is automatically included in “sex” — when you are firing a person for liking someone of the same sex, you are taking their sex into consideration.
The Trump administration, however, does not think so. According to a report in The New York Times, the administration, under Solicitor General Noel J Francisco and Department of Justice attorneys, has argued that “Title VII does not include sexual orientation or gender identity, and therefore it is perfectly legal to fire and discriminate against people on the grounds that they are LGBTQ.”
The government’s argument is: “Unfavourable treatment of a gay or lesbian employee as such is not the consequence of that individual’s sex, but instead of an employer’s policy concerning a different trait — sexual orientation — that Title VII does not protect.”
In Stephens’s case, the Court of Appeals had said: “It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex. Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.”
However, one of the funeral home’s lawyers, as quoted by The New York Times, said: “Neither government agencies nor the courts have authority to rewrite federal law by replacing ‘sex’ with ‘gender identity'”.
Stephens’s lawyers claim precedence can be drawn from a 1989 judgment of the Supreme Court, where it ruled it was wrong of Price Waterhouse to not give Ann Hopkins partnership only because her colleagues thought she didn’t dress and conduct herself in a “feminine enough” manner. Thus, the SC has previously ruled that gender can’t be allowed to influence employers’ expectations of how an employee behaves.
Several commentators in the US have said that a significant factor is that the cases have come up for hearing after the retirement of Justice Anthony M Kennedy, a Conservative judge who was notably gay-rights friendly, and who has been replaced by Justice Brett Kavanaugh. But others feel the cases are not political at all, but simply about what the text of the Title VII statute means.
Meanwhile, over 200 companies, including Amazon and Google, have joined a friend-of-the-court brief asking the Supreme Court to decide in favour of the plaintiffs, claiming inclusive and clear laws help business.
The Equal Employment Opportunities Commission, a federal body, has also backed the plaintiffs.
The cases come at a time when the Equality Act, that seeks to amend the Civil Rights Act to “prohibit discrimination on the basis of the sex, sexual orientation, gender identity, or pregnancy, childbirth, or a related medical condition of an individual, as well as because of sex-based stereotypes” is stuck in the US Senate.
In an August 2019 statement, the Trump administration, while asserting it “absolutely opposes discrimination of any kind and supports the equal treatment of all”, said “the House-passed bill in its current form is filled with poison pills that threaten to undermine parental and conscience rights”.
The Supreme Court in the three cases will take a call on how to interpret laws written in a time when certain issues they seek to govern were not thought of. Either way, the rulings will have a great impact on LGBTQ and civil rights movements in the United States.