Court weighs LGBT rights

The Saratogian (Saratoga, NY) - - FRONT PAGE - By Mark Sher­man and Matthew Barakat

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 Jus­tice Brett Ka­vanaugh did not squarely 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 bath­rooms, 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. Ka­vanaugh gen­er­ally is re­garded as more con­ser­va­tive.

A de­ci­sion is ex­pected by early sum­mer 2020, amid the pres­i­den­tial elec­tion cam­paign.

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 U.S., 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 since the week­end to try to snag the few seats the court makes avail­able to the pub­lic for ar­gu­ments.

The ap­peals un­der con­sid­er­a­tion in­volve Ger­ald Lynn Bostock, who claims he lost his job work­ing for Clay­ton County, Ge­or­gia, af­ter he be­gan play­ing in a gay recre­ational soft­ball league. He lost his case in fed­eral dis­trict court and at the 11th U.S. Cir­cuit Court of Ap­peals in At­lanta.

Sky­div­ing in­struc­tor Don­ald Zarda was fired shortly af­ter telling a wo­man he was pre­par­ing to take on a dive that he was gay. Zarda, who worked for Al­ti­tude Ex­press on New York’s Long Is­land, said he would some­times re­veal his sex­ual ori­en­ta­tion to al­lay con­cerns women might have about be­ing strapped to­gether dur­ing a dive.

Zarda ini­tially lost his law­suit, but the 2nd U.S. Cir­cuit Court of Ap­peals ruled for him. Zarda has since died.

Stephens lost her job when she told Thomas Rost, owner of the Detroit-area R.G. and G.R. Har­ris Funeral Homes, that she had strug­gled with gen­der iden­tity is­sues al­most her whole life. She was plan­ning to ex­change the dark suit and tie she had worn to work for nearly six years as an em­balmer and funeral di­rec­tor for a con­ser­va­tive dress or skirt that was re­quired for women who worked for Rost.

Rost told Stephens her plan wouldn’t work and let her go. The fed­eral Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion sued on her be­half and, af­ter los­ing in a dis­trict court, won a rul­ing in the 6th U.S. Cir­cuit Court of Ap­peals in Cincin­nati.

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 eas­ily 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 Repub­li­can-con­trolled Se­nate.

But the work­ers contend, and the lower courts that have ruled for them have rea­soned, that the law as it stands plainly cov­ers sex­ual ori­en­ta­tion and gen­der iden­tity be­cause dis­crim­i­na­tion against them is based on gen­er­al­iza­tions about sex that have noth­ing to do with their abil­ity to do their jobs.

They also ar­gue that they were fired for not con­form­ing to sex stereo­types, a form of sex dis­crim­i­na­tion that the Supreme Court rec­og­nized 30 years ago.

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