Sex discrimination law could cover gays
The question of whether a 55yearold federal ban on sex discrimination also applies to sexual orientation and gender identity was argued Tuesday before a Supreme Court that was clearly divided, but that may be willing to interpret the law to protect gays and lesbians.
During two hours of arguments in the cases of three people who were fired for being gay or transgender, a crucial issue was whether such dismissals are based on sex, which is expressly forbidden by the 1964 Civil Rights Act. And in the cases of two gay men, at least one member of the court’s conservative majority, Justice Neil Gorsuch, seemed receptive.
When someone is fired because of sexual orientation, “isn’t sex also in play here? ... And isn’t that enough” to be covered by the law, Gorsuch asked the employers’ attorney, Jeffrey Harris. Later, addressing the Trump administration’s lawyer, Solicitor General Noel Francisco, Gorsuch suggested that “one contributing cause (in such dismissals) appears to be sex.”
No, Francisco replied, because “as long as you’re treating gay men and women exactly the same regardless of their sex, the contributing cause is sexual orientation, not sex.”
Harris, likewise, argued that “sex means whether you’re male or female, not whether you’re gay or straight,” and that firing or refusing to hire someone because of sexual orientation is not sex discrimination.
Yes, it is, said Pamela Karlan, a Stanford law professor representing the fired workers. “When an employer fires a male employee for dating men but does not fire female employees for dating men, he violates” the sex discrimination law, she said.
Justices asked critical questions of both sides, leaving the outcome far from certain.
But if Gorsuch, an appointee of President Trump, joins the court’s four more liberal members to conclude that the 1964 law forbids discrimination based on sexual orientation, the result would be a landmark ruling on the scale of the 2015 decision that legalized samesex marriage nationwide.
A ruling is due by the end of June.
Such a ruling would have no direct impact on California, one of at least 22 states, plus the District of Columbia, where laws already prohibit discrimination against members of the LGBT community. Several other states ban such discrimination by government employers but not private businesses.
The outlook seemed less favorable for transgender advocates. In the case of an employee of a Michigan funeral home who was fired after coming out as a transgender women, the court’s conservatives appeared to agree that her dismissal was not sex discrimination under the current law.
Gorsuch referred approvingly to a federal appeals court judge’s opinion that “suggested that something as drastic a change in this country as bathrooms in every place of employment and dress codes in every place of employment that are otherwise genderneutral would be changed ... that that’s an essentially legislative decision.”
Shouldn’t the court consider “the massive social upheaval that would be entailed in such a decision” and leave it to Congress, he asked the woman’s lawyer, David Cole of the American Civil Liberties Union.
“The objection to someone for being transgender is the ultimate sex stereotype,” said Cole, who contended Congress had already outlawed discrimination based on gender identity.
Cole said his client, Aimee Stephens, was fired after six years of employment because of “failing to conform to (the) owner’s explicitly stated stereotypes about how men and women should behave.”
He noted that in 1989, the Supreme Court, without expressly ruling on transgender discrimination, prohibited firing someone for not conforming to sex stereotypes — in that case, an accountant who was denied a promotion because her employer considered her too aggressive, with one partner at the firm saying she needed a “course in charm school.”
But Chief Justice John Roberts said discrimination based on transgender status “is not biological discrimination” as long as males and females are treated equally.
John Bursch, the lawyer for Stephens’ former employer, said a ruling in her favor would require shelter facilities “to hire a man who identifies as a woman to serve as a counselor to women who have been raped ... and also share restroom, shower, and locker room facilities with them.”
Justice Stephen Breyer chided Bursch for a “parade of horribles.” Since 1964, Breyer said, the nation and its courts have become more aware of the “terrible discrimination” suffered by sexual minorities — a reason to “interpret (the law) to include gay people and transgender people now.”