HIGH COURT SPLIT OVER LGBTQ WORKPLACE DISCRIMINATION
Justice Gorsuch: Issue might be better resolved by Congress
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.
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.
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.