Court weighs pro­tec­tions for gay, trans­gen­der work­ers

The Washington Post - - FRONT PAGE - BY ROBERT BARNES AND ANN E. MA­RI­MOW [email protected]­post.com ann.ma­ri­[email protected]­post.com

Daniel Goldman, cen­ter, of Ar­ling­ton, Va., hold­ing the trans­gen­der pride flag, stands out­side the Supreme Court on Tues­day as the jus­tices heard ar­gu­ments on whether fed­eral pro­tec­tions against dis­crim­i­na­tion “be­cause of sex” ap­ply to gay and trans­gen­der work­ers. Other demon­stra­tors in­cluded a group, left, sup­port­ing one of the em­ploy­ers in the three cases be­fore the court in­volv­ing three peo­ple who say they were wrongly fired.

The Supreme Court ap­peared di­vided Tues­day about whether fed­eral dis­crim­i­na­tion laws pro­tect gay and trans­gen­der work­ers, and Pres­i­dent Trump’s ap­point­ments to the court could play the piv­otal roles in de­cid­ing the out­come.

The is­sue, one of the most sig­nif­i­cant fac­ing the court this term, con­cerns the reach of Ti­tle VII of the Civil Rights Act of 1964, which, be­sides pro­tect­ing against work­place dis­crim­i­na­tion be­cause of race, re­li­gion and other char­ac­ter­is­tics, also pro­hibits dis­crim­i­na­tion “be­cause of sex.” The court has since in­ter­preted that def­i­ni­tion to in­clude dis­crim­i­nat­ing on the ba­sis of sex stereo­types.

The ar­gu­ments touched on some of the most con­tro­ver­sial is­sues of the day — whether it would mean the end of sin­gle-sex bath­rooms, whether men should be able to com­pete on fe­male ath­letic teams, whether dress codes for men and women would be­come a thing of the past.

The word “trans­gen­der” made its first ap­pear­ance in a Supreme Court ar­gu­ment, as did “cis­gen­der” — the term for a per­son whose gen­der iden­tity matches how they were iden­ti­fied at birth — and the gen­der-am­bigu­ous char­ac­ter “Pat” from “Satur­day Night Live” skits that aired dur­ing the 1990s. Chief Jus­tice John G. Roberts Jr., whose ques­tions in court gave no sig­nal about his views on the case, was care­ful with pro­nouns, at one point us­ing the neu­tral “they” to re­fer to an in­di­vid­ual.

Lawyers for the gay and trans­gen­der in­di­vid­u­als chal­leng­ing their fir­ings seemed to pitch their ar­gu­ments to Jus­tice Neil M. Gor­such, a con­ser­va­tive who ad­vo­cates a close tex­tual read­ing of statutes. Dur­ing the sex­ual ori­en­ta­tion ar­gu­ments, he pushed lawyers for the govern­ment and the em­ploy­ers to ac­knowl­edge that sex seemed to be at least a “con­tribut­ing cause” to the ter­mi­na­tions.

But dur­ing ar­gu­ments in the trans­gen­der case, he won­dered if “when a case is re­ally close,” courts should make de­ci­sions that might cause “mas­sive so­cial up­heaval” rather than leave it up to Congress.

Jus­tice Brett M. Ka­vanaugh, the court’s new­est mem­ber, kept a low pro­file dur­ing the two hours of ar­gu­ment, ask­ing only one ques­tion.

There seemed lit­tle doubt that the court’s four lib­eral mem­bers would find that Ti­tle VII cov­ered gay and trans­gen­der work­ers. But one of the court’s five con­ser­va­tives would have to join them to form a ma­jor­ity.

The court com­bined two cases to con­sider whether gay work­ers are pro­tected un­der the law. Ger­ald Bostock claims he was fired from his job as a so­cial worker in Clay­ton County, Ga., af­ter he be­came more open about be­ing gay, in­clud­ing join­ing a gay soft­ball league. Don­ald Zarda said he was fired as a sky­div­ing in­struc­tor af­ter jok­ing with a fe­male client to whom he was strapped for a tan­dem dive that he was gay. (Zarda died in 2014.)

Stan­ford Univer­sity law pro­fes­sor Pamela S. Kar­lan, rep­re­sent­ing the two gay em­ploy­ees, said the court need not up­date the 1964 law to find that sex plays a role when some­one is fired be­cause of sex­ual ori­en­ta­tion.

She gave an ex­am­ple of two em­ploy­ees who told their boss they had mar­ried “Bill” over the week­end.

“When you fire the male em­ployee who mar­ried Bill and you give the fe­male em­ployee who mar­ried Bill a cou­ple of days off so she can cel­e­brate the joy­ous event, that’s dis­crim­i­na­tion be­cause of sex,” Kar­lan said.

Jus­tice Ruth Bader Gins­burg at times seem to throw ob­jec­tions at Kar­lan so she could bat them down.

“Ms. Kar­lan, how do you an­swer the ar­gu­ment that back in 1964, this could not have been in Congress’s mind be­cause in many states male same-sex re­la­tions was a crim­i­nal of­fense; the Amer­i­can Psy­chi­atric As­so­ci­a­tion la­beled ho­mo­sex­u­al­ity a men­tal ill­ness,” Gins­burg said.

“Well, I think you read the words of the statute,” Kar­lan replied. “And this court has rec­og­nized again and again forms of sex dis­crim­i­na­tion that were not in Congress’s con­tem­pla­tion in 1964,” men­tion­ing sex­ual harass­ment and stereo­types.

The ques­tion­ing from Jus­tice Samuel A. Al­ito Jr. was not so be­nign. He said the plain­tiffs wanted the court to do what Congress would not.

“Congress has been asked re­peat­edly in the years since 1964 to ad­dress this ques­tion. The Equal­ity Act is be­fore Congress right now,” Al­ito said. “Congress has de­clined or failed to act on these re­quests. And if the court takes this up and in­ter­prets this 1964 statute to pro­hibit dis­crim­i­na­tion based on sex­ual ori­en­ta­tion, we will be act­ing ex­actly like a leg­is­la­ture.”

Jef­frey M. Har­ris, the lawyer for the em­ploy­ers, and Solic­i­tor Gen­eral Noel J. Fran­cisco, rep­re­sent­ing the Trump ad­min­is­tra­tion, made pre­cisely that ar­gu­ment. Sex and sex­ual ori­en­ta­tion, Har­ris said, are in­de­pen­dent and dis­tinct char­ac­ter­is­tics.

“That is just as true to­day as it was in 1964” when Congress passed the law, which he said did not in­clude pro­tec­tions for gay peo­ple.

Added Fran­cisco: “Sex means whether you’re male or fe­male, not whether you’re gay or straight. So if you treat all gay men and women ex­actly the same be­cause of their sex, you’re not dis­crim­i­nat­ing against them be­cause of their sex.”

Jus­tice Elena Kagan said Fran­cisco had the test wrong and dis­counted his view that Congress did not mean to cover sex­ual ori­en­ta­tion.

“For many years, the lodestar of this court’s statu­tory in­ter­pre­ta­tion has been the text of a statute, not the leg­isla­tive his­tory, and cer­tainly not the sub­se­quent leg­isla­tive his­tory,” she said. “And the text of the statute ap­pears to be pretty firmly in Ms. Kar­lan’s cor­ner. Did you dis­crim­i­nate against some­body, against her client, be­cause of sex?”

Roberts asked the work­ers’ at­tor­ney what new pro­tec­tions would mean for re­li­gious or­ga­ni­za­tions. Kar­lan re­sponded that ex­emp­tions al­ready ex­ist for those with re­li­gious ob­jec­tions to hir­ing gay work­ers.

The ques­tions about sin­gle-sex bath­rooms and gen­der-spe­cific dress codes came up mostly in the case in­volv­ing Aimee Stephens, who worked for years at a Michi­gan funeral home be­fore be­ing fired af­ter in­form­ing the own­ers and col­leagues of her gen­der tran­si­tion.

Amer­i­can Civil Lib­er­ties Union le­gal di­rec­tor David D. Cole, rep­re­sent­ing Stephens, said the court will still face dif­fi­cult ques­tions about re­strooms and ath­letic teams no mat­ter how it rules in these cases.

But he said Stephens’s fir­ing fit squarely within the law’s word­ing “be­cause of sex.” She was fired, he said, “be­cause she had a male sex as­signed at birth.”

Gor­such ques­tioned whether sid­ing with Stephens could mean “some­thing as dras­tic a change in this coun­try as bath­rooms in every place of em­ploy­ment and dress codes in every place of em­ploy­ment that are oth­er­wise gen­der-neu­tral would be changed.”

Cole said fed­eral courts have rec­og­nized dis­crim­i­na­tion against trans­gen­der peo­ple as a form of sex dis­crim­i­na­tion for 20 years.

“There are trans­gen­der male lawyers in this court­room fol­low­ing the male dress code and go­ing to the men’s room,” he noted. “The court’s dress code and sexseg­re­gated re­strooms have not fallen.”

John J. Bursch of the Al­liance De­fend­ing Free­dom, rep­re­sent­ing the funeral home, made ar­gu­ments sim­i­lar to those in the other case: “Treat­ing women and men equally does not mean em­ploy­ers have to treat men as women. That is be­cause sex and trans­gen­der sta­tus are in­de­pen­dent con­cepts.”

He por­trayed Cole’s ar­gu­ments as far-reach­ing. It would mean, he said, “that a women’s overnight shel­ter must hire a man who iden­ti­fies as a wo­man to serve as a coun­selor to women who have been raped, traf­ficked, and abused and also share re­stroom, shower, and locker room fa­cil­i­ties with them. That is be­cause, but for the man’s sex, he would be al­lowed to hold that job and to use those fa­cil­i­ties.”

Gins­burg said there is a dif­fer­ence be­tween treat­ing men and women dif­fer­ently, and dis­crim­i­na­tion. “Most peo­ple are not in­jured by hav­ing sep­a­rate bath­rooms,” she said. “In fact, most peo­ple would pre­fer it.”

The Trump ad­min­is­tra­tion’s po­si­tion puts it at odds with the Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion, which de­cided in 2015 that gay and trans­gen­der in­di­vid­u­als were fed­er­ally pro­tected.

Treat­ing a man who is at­tracted to men dif­fer­ently from a wo­man who is at­tracted to men is dis­crim­i­na­tion, the EEOC rea­soned.

The com­mis­sion also looked at a 1989 Supreme Court de­ci­sion that said fed­eral law pro­tected against dis­crim­i­na­tion based on stereo­types; the court found for a wo­man who had not been pro­moted be­cause her em­ploy­ers found her too ag­gres­sive and her man­ner of dress not fem­i­nine enough.

That is anal­o­gous to dis­crim­i­nat­ing against a trans­gen­der in­di­vid­ual, the com­mis­sion said. And dis­crim­i­na­tion be­cause of sex­ual ori­en­ta­tion is the same thing, the EEOC said, be­cause it re­lies on stereo­types about to whom men and women should be at­tracted.

Gay rights lead­ers say “mar­ried on Sun­day, fired on Mon­day” is a pos­si­bil­ity in more than half of the United States, where there is no spe­cific pro­tec­tion for gay or trans­gen­der work­ers. The states that pro­hibit dis­crim­i­na­tion are not uni­form — some pro­tect only gen­der iden­tity or trans­gen­der sta­tus, and some dif­fer­en­ti­ate be­tween pub­lic and pri­vate em­ploy­ment.

The sex­ual ori­en­ta­tion cases are Bostock v. Clay­ton County, Ga. and Al­ti­tude Ex­press v. Zarda. The other case is R.G. & G.R. Har­ris Funeral Homes v. EEOC.

MICHAEL S. WILLIAMSON/THE WASH­ING­TON POST

MICHAEL S. WILLIAMSON/THE WASH­ING­TON POST

On­look­ers were cleared from the front of the Supreme Court and roads were closed early Tues­day as po­lice re­sponded af­ter 8 a.m. to a re­port of a sus­pi­cious pack­age nearby. A Capi­tol Po­lice spokes­woman said the court re­mained open and the sit­u­a­tion ended about 10 a.m.

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