High court sharply di­vided over LGBT pro­tec­tion

Gor­such, Ka­vanaugh could hold the keys

USA TODAY International Edition - - FRONT PAGE - Richard Wolf

WASH­ING­TON – The Supreme Court ap­peared deeply di­vided Tues­day on a ma­jor civil rights ques­tion: whether gay and trans­gen­der peo­ple are cov­ered by a fed­eral law bar­ring em­ploy­ment dis­crim­i­na­tion on the ba­sis of sex.

The court’s rul­ings in three cases, which are not ex­pected un­til next year, seemed to hinge on Pres­i­dent

Don­ald Trump’s two nom­i­nees. As­so­ciate

Jus­tice Neil Gor­such called the dis­pute over trans­gen­der rights

“close” but more likely an is­sue for Congress to ad­dress. As­so­ciate Jus­tice Brett Ka­vanaugh di­rected his only ques­tion to a lawyer for two em­ploy­ers that fired gay work­ers, leav­ing his po­si­tion in doubt.

The court’s four lib­eral jus­tices force­fully de­nounced the firings of two gay men and a trans­gen­der woman from Georgia, New York and Michi­gan and made clear they be­lieve all three should be pro­tected by the statu­tory ban on sex dis­crim­i­na­tion.

“We can’t deny that ho­mo­sex­u­als are be­ing fired merely for be­ing who

they are and not be­cause of re­li­gious rea­sons, not be­cause they are per­form­ing their jobs poorly,” As­so­ciate Jus­tice So­nia So­tomayor said, call­ing it “in­vid­i­ous be­hav­ior.”

The three cases are among the most sig­nificant on the high court’s 2019 docket, and the jus­tices’ rul­ings are likely to come in the heat of the 2020 pres­i­den­tial cam­paign.

The chal­lenges pick up where the same- sex mar­riage bat­tle left off in 2015, when the court ruled 5- 4 that states can­not bar gay men or les­bians from get­ting mar­ried.

What’s dif­fer­ent is the court it­self: The au­thor of four ma­jor opin­ions ex­pand­ing gay rights, Anthony Kennedy, re­tired last year and was suc­ceeded by the more con­ser­va­tive Ka­vanaugh. If his vote was counted on by those tak­ing the em­ploy­ers’ side, he gave no hints. He was mostly silent dur­ing Tues­day’s two hours of oral ar­gu­ments.

Gor­such said sex was at least “in play,” an ac­knowl­edg­ment that the gay and trans­gen­der work­ers claim­ing sex dis­crim­i­na­tion have a rea­son­able ar­gu­ment. What he did not say: that the courts should fix it.

In­stead, Gor­such said the “mas­sive so­cial up­heaval that would be en­tailed in such a de­ci­sion” in the fired work­ers’ fa­vor points more to­ward Congress. “It’s a ques­tion of ju­di­cial mod­esty,” he said.

The three plain­tiffs are Ger­ald Bo­s­tock, 55, a for­mer child wel­fare ser­vices co­or­di­na­tor from Georgia; Don­ald Zarda, a for­mer New York sky­div­ing in­struc­tor who died at 44 in 2014 but is rep­re­sented by his sis­ter and for­mer part­ner; and Aimee Stephens, 58, a for­mer funeral home worker from Michi­gan who is trans­gen­der.

Through­out the de­bate inside a packed court­room, the court’s con­ser­va­tive and lib­eral jus­tices tan­gled over the text of the 1964 statute, the proper male- fe­male and gay- straight com­par­isons to make and the role of the courts in right­ing so­ci­etal wrongs.

The con­ver­sa­tion veered from com­par­isons made by lib­eral jus­tices be­tween same- sex re­la­tion­ships and in­ter­faith mar­riages to con­cerns voiced by con­ser­va­tive jus­tices that a win for LGBT rights would en­dan­ger men’s and women’s re­strooms, dress codes and fitness tests.

Rather than claim­ing a con­sti­tu­tional right to equal treat­ment, the chal­lengers must con­vince at least five jus­tices that the word “sex” in the Civil Rights Act of 1964 in­cor­po­rates sex­ual ori­en­ta­tion and gen­der iden­tity. “All you need to do is show that sex played a role here,” said Pamela Kar­lan, the lawyer rep­re­sent­ing Bo­s­tock and Zarda.

That clearly was a stretch for some con­ser­va­tive jus­tices.

“You’re try­ing to change the mean­ing of what Congress un­der­stood sex to mean in 1964,” As­so­ciate Jus­tice Sa­muel Al­ito said. While As­so­ciate Jus­tice Clarence Thomas stayed char­ac­ter­is­ti­cally silent, Al­ito seemed most aligned with the em­ploy­ers and the Trump ad­min­is­tra­tion.

Solic­i­tor Gen­eral Noel Fran­cisco ar­gued both cases along­side lawyers for the Georgia county, the New York sky­div­ing com­pany and the Michi­gan funeral home. Sex, he said, “means whether you’re male or fe­male, not whether you’re gay or straight.”

Out­side court, hun­dreds of LGBTQ demon­stra­tors ral­lied, un­de­terred by a se­cu­rity threat that forced po­lice to cor­don off the street early Tues­day when two sus­pi­cious pack­ages were no­ticed.

Kather­ine Fuchs, 38, said she came to the demon­stra­tion be­cause she was “out­raged that in 2019, some­one could be fired for their sex­ual ori­en­ta­tion or gen­der iden­tity.”


The im­pact of a vic­tory for Bo­s­tock, Zarda and Stephens would be great­est in 28 states that have lit­tle or no work­place pro­tec­tion for the LGBT com­mu­nity. Even in states such as New York, which does, in­cor­po­rat­ing sex­ual ori­en­ta­tion in the fed­eral law bar­ring dis­crim­i­na­tion based on race, color, reli­gion, sex or na­tional ori­gin would add an im­por­tant layer of pro­tec­tion.

About 4.5% of the U. S. pop­u­la­tion, or roughly 11 mil­lion peo­ple, iden­tify as LGBTQ, of which 88% are em­ployed.

Fed­eral ap­peals courts have been split on the ques­tion since 2017, when the U. S. Court of Ap­peals for the 7th Cir­cuit be­came the first to rule that gay men and les­bians should be cov­ered by the decades- old fed­eral civil rights law. The 2nd Cir­cuit ruled for Zarda last year, but the 11th Cir­cuit, based in At­lanta, ruled against Bo­s­tock. The 6th Cir­cuit, based in Cincin­nati, ruled for Stephens last year.

Congress has de­bated the is­sue for decades but “re­peat­edly de­clined to pass bills adding sex­ual ori­en­ta­tion to the list of pro­tected traits” un­der the law, the Jus­tice Depart­ment noted. The Demo­crat- con­trolled House passed the Eq­uity Act this year, but the GOP- con­trolled Se­nate has not con­sid­ered it.

If the court rules that LGBTQ work­ers are pro­tected un­der the civil rights law, it could help them win other rights in ar­eas such as hous­ing, ed­u­ca­tion, health care and credit.


Pro­test­ers on both sides gather out­side the Supreme Court as jus­tices heard ar­gu­ments in a land­mark em­ploy­ment dis­crim­i­na­tion case.

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