The Day

HIGH COURT SPLIT OVER LGBTQ WORKPLACE DISCRIMINA­TION

Justice Gorsuch: Issue might be better resolved by Congress

- By MARK SHERMAN and MATTHEW BARAKAT

Washington — 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.

“This case is really close,” said Gorsuch, President Donald Trump’s first appointmen­t to the high court, during oral arguments over whether the 1964 federal ban on discrimina­tion on the basis of “sex” applies to LGBTQ people. He told an ACLU lawyer arguing in favor of a transgende­r woman who was fired: “I’m with you on the text.”

But Gorsuch went on to say that it is a matter for Congress, not the court. “It’s a question of judicial modesty,” he said.

Washington — A seemingly divided Supreme Court struggled Tuesday over whether a landmark civil rights law protects LGBTQ people from discrimina­tion in employment, with one conservati­ve justice wondering if the court should take heed of “massive social upheaval” that could follow a ruling in their favor.

With the court’s four liberal justices likely to side with workers who were fired because of their sexual orientatio­n or transgende­r status, the question in two highly anticipate­d cases that filled the courtroom was whether one of the court’s conservati­ves might join them.

Two hours of lively arguments touched on sex-specific bathrooms, locker rooms and dress codes, and even a reference to the androgynou­s character known simply as Pat on “Saturday Night Live” in the early 1990s.

A key provision of the Civil Rights Act of 1964 known as Title 7 bars job discrimina­tion because of sex, among other reasons. In recent years, some courts have read that language to include discrimina­tion against LGBTQ people as a subset of sex discrimina­tion.

Justice Neil Gorsuch, President Donald Trump’s first Supreme Court appointee, said there are strong arguments favoring the LGBTQ workers. But Gorsuch suggested that maybe Congress, not the courts, should change the law because of the upheaval that could ensue. “It’s a question of judicial modesty,” Gorsuch said.

David Cole, the American Civil Liberties Union lawyer representi­ng fired transgende­r funeral home director Aimee Stephens, said the situation at the court itself showed such concerns were overblown.

“There are transgende­r male lawyers in this courtroom following the male dress code and going to the men’s room and the court’s dress code and sex-segregated restrooms have not fallen,” Cole said.

Two other conservati­ves, Chief Justice John Roberts and Justice Brett Kavanaugh, did not squarely indicate their views, although Roberts questioned how employers with religious objections to hiring LGBTQ people might be affected by the outcome.

The first of two cases involved a skydiving instructor and a county government worker in Georgia who were fired for being gay. The second case involves transgende­r people, and the audience included Stephens, transgende­r actor Laverne Cox and some people who had waited in line since the weekend for Tuesday’s arguments.

The Trump administra­tion and lawyers for the employers hit hard on the changes that might be required in bathrooms, locker rooms, women’s shelters and school sports teams if the court were to rule that the Civil Rights Act of 1964 covers LGBTQ people. Lawmakers, not unelected judges, should change the law, they argued.

“Sex means whether you’re male or female, not whether you’re gay or straight,” Noel Francisco, Trump’s top Supreme Court lawyer said.

 ?? MANUEL BALCE CENETA AP PHOTO ?? Supporters of LGBTQ rights hold placards in front of the U.S. Supreme Court on Tuesday in Washington. With the court’s four liberal justices likely to side with workers who were fired because of their sexual orientatio­n or transgende­r status, the question in two cases was whether one of the court’s conservati­ves might join them.
MANUEL BALCE CENETA AP PHOTO Supporters of LGBTQ rights hold placards in front of the U.S. Supreme Court on Tuesday in Washington. With the court’s four liberal justices likely to side with workers who were fired because of their sexual orientatio­n or transgende­r status, the question in two cases was whether one of the court’s conservati­ves might join them.
 ?? SUSAN WALSH/AP PHOTO ?? Protesters gather Tuesday outside the Supreme Court in Washington, where the Supreme Court is hearing arguments in the first case of LGBTQ rights since the retirement of Supreme Court Justice Anthony Kennedy.
SUSAN WALSH/AP PHOTO Protesters gather Tuesday outside the Supreme Court in Washington, where the Supreme Court is hearing arguments in the first case of LGBTQ rights since the retirement of Supreme Court Justice Anthony Kennedy.

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