Jus­tices weigh le­gal rights of LGBT work­ers

Con­ser­va­tive bloc likely to re­main key in sum­mer de­ci­sion

The Morning Call - - FRONT PAGE - By Mark Sher­man and Matthew Barakat

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.

MANUEL BALCE CENETA/AP

MANUEL BALCE CENETA/AP

Sup­port­ers of LGBT rights stage a sit-in protest Tues­day in front of the Supreme Court Build­ing in Wash­ing­ton.

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