Justices weigh legal rights of LGBT workers
Conservative bloc likely to remain key in summer decision
A divided Supreme Court struggled Tuesday over whether a landmark civil rights law protects LGBT people from discrimination in employment. With the court’s four liberal justices likely to side with workers fired because of sexual orientation or transgender status, the question was whether one of the court’s conservatives might join them.
WASHINGTON — A seemingly divided Supreme Court struggled Tuesday over whether a landmark civil rights law protects LGBT people from discrimination in employment.
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.
Justice Neil Gorsuch, President Donald Trump’s first Supreme Court appointee, said there are strong arguments favoring the LGBT workers. But he wondered whether the justices should take into account “the massive social upheaval” that might follow a ruling in their favor.
Two other conservatives, Chief Justice John Roberts and new Justice Brett Kavanaugh, did not indicate their views, although Roberts also questioned how employers with religious objections to hiring LGBT 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 dealt with fired transgender funeral home director Aimee Stephens, who was in the courtroom for Tuesday’s arguments.
The Trump administration and lawyers for the employers hit hard on the changes that might be required in restrooms, locker rooms, women’s shelters and school sports teams if the court were to rule that the Civil Rights Act of 1964 covers LGBT people.
Lawmakers, not unelected judges, should change the law, they argued.
Justice Samuel Alito, a conservative, seemed to agree with that argument, saying Congress in 1964 did not envision covering sexual orientation or gender identity.
“You’re trying to change the meaning of ‘sex,’ ” Alito said. Justice Clarence Thomas, who returned to the bench Tuesday after staying home sick the day before, said nothing, as is his custom.
Justice Ruth Bader Ginsburg countered that Congress also could not have foreseen sexual harassment as a kind of sex discrimination in 1964, either. Justice Elena Kagan suggested sexual orientation is a clear subset of sex discrimination, saying that a man who loves other men cannot be treated differently by an employer than a woman who loves men.
The cases are the court’s first on LGBT rights since Justice Anthony Kennedy’s retirement and replacement by Kavanaugh. Kennedy was a voice for gay rights and the author of the landmark ruling in 2015 that made same-sex marriage legal throughout the United States.
A decision is expected by early summer.
A ruling for employees who were fired because of their sexual orientation or gender identity would have a big impact for the estimated 8.1 million LGBT workers across the country because most states don’t protect them from workplace discrimination. An estimated 11.3 million LGBT people live in the country, according to the Williams Institute at the UCLA law school.
The Trump administration has changed course from the Obama administration and now supports the employers in arguing that the civil rights law’s Title 7 does not prohibit discrimination because of sexual orientation or transgender status.
People waited in line outside the court to try to snag the few seats the court makes available to the public for arguments.
During the Obama years, the EEOC had changed its longstanding interpretation of civil rights law to include discrimination against LGBT people. The law prohibits discrimination because of sex, but has no specific protection for sexual orientation or gender identity.
The Trump administration and the employers say Congress could settle the matter by amending Title 7 to include LGBT people. Legislation to that effect is pending in Congress but is not likely to pass the GOP-controlled Senate.