HIGH COURT SPLIT OVER LGBTQ WORK­PLACE DIS­CRIM­I­NA­TION

Jus­tice Gor­such: Is­sue might be bet­ter re­solved by Congress

The Day - - FRONT PAGE - 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.

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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