Supreme Court considers whether Civil Rights Act protects LGBT workers
In a pair of exceptionally hard-fought arguments on Tuesday, the Supreme Court struggled to decide whether a landmark 1964 civil-rights law bars employment discrimination based on sexual orientation and transgender status.
Job discrimination against gay and transgender workers is legal in much of the nation, and the arguments underscored the significance of what could be a momentous ruling. If the court decides that the law, Title VII of the Civil Rights Act, applies to many millions of LGBT employees, they would gain basic protections that other groups have long taken for granted.
The cases were the court’s first ones on LGBT rights since the retirement last year of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gayrights decisions. And without Kennedy, who joined four liberals in the 5-4 ruling in the gay-marriage case, the workers who sued their employers in the three cases before the court might face an uphill fight.
For the most part, the justices seemed divided along ideological lines on Tuesday. But there was one possible exception: Justice Neil M. Gorsuch, a member of the court’s conservative majority, who asked questions suggesting that his vote might be in play.
Gorsuch is an avowed believer in textualism, meaning that he considers the words Congress enacted rather than evidence drawn from other sources. And he repeatedly suggested that the words of Title VII might well bar employment discrimination based on sexual orientation and transgender status.
The question was, he said, “really close, really close.”
But he added that such a significant change might be more appropriate coming from Congress rather than the courts.
Title VII outlawed discrimination based on race, religion, national origin, and, notably, sex. The question for the justices was how broadly to read that last term.
The first argument concerned a pair of lawsuits from gay men who say they were fired because of their sexual orientation. The second was about a suit from a transgender woman, Aimee Stephens, who said her employer fired her when she announced she would embrace her gender identity at work.