Outside the Beltway

Justices Divided On Extending Civil Rights Laws To LGBT Employees

Yesterday, the Supreme Court held oral argument in a series of cases asking it to decide if existing civil rights laws cover discrimination based on sexual orientation or gender identity.

Doug Mataconis · Wednesday, October 9, 2019 · 13 comments

On just the second day of its new term, the Supreme Court heard oral argument on what is likely to be one of the most significant of the cases it will hear over the next eight-month. Specifically, in a series of cases that have been consolidated for the purposes of argument, the Court is being asked to decide if Federal Civil Rights laws barring discrimination based on sex apply to discrimination based on sexual orientation or gender identity. Not surprisingly, the oral argument, which was given somewhat more time than generally given due to the fact that multiple parties are involved, revealed that the Court was divided on the primary legal issue before it:

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.

Amy Howe discusses the oral argument at SCOTUSBlog:

The morning was divided into two arguments, involving closely related – but not identical – issues: a pair of cases, argued together, involving whether Title VII bans discrimination based on sexual orientation, followed by a third case in which the justices are considering whether the law prohibits discrimination based on transgender status.

First up this morning was Stanford law professor Pamela Karlan, arguing on behalf of two men who contend that they were fired from their jobs because they were gay. Donald Zarda (who died in 2014 in a base-jumping accident in Switzerland) had been working as an instructor for a skydiving company now known as Altitude Express, while Gerald Bostock had worked as a child-welfare-services coordinator in Clayton County, Georgia.

Karlan spent much of her time at the lectern dealing with two main sets of concerns. The first was the argument that Congress could not possibly have intended to bar employment discrimination based on sexual orientation when it passed Title VII back in 1964. After all, Justice Ruth Bader Ginsburg observed, at that time the American Psychiatric Association labeled homosexuality a mental illness.

Karlan countered that the Supreme Court has recognized other claims that Congress could not have contemplated when it enacted Title VII. 1964, Karlan noted, was the era of the television show “Mad Men”: Congress would not have recognized sexual harassment as covered by Title VII, but courts nonetheless recognize it now.

Instead, Karlan reiterated, the justices should focus on the text of Title VII. When Chief Justice John Roberts asked her to comment on a statement by now-retired Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit, who said that Title VII should be read to include discrimination based on sexual orientation to “avoid placing the entire burden of updating old statutes on the legislative branch,” Karlan argued that no updating is required. Reading the words of Title VII “as they were understood then, which is ‘men’ and ‘women,’ Title VII was intended to make sure that men were not disadvantaged relative to women and women were not disadvantaged relative to men.”

Karlan also fielded questions from the justices about the broader implications of a ruling in favor of the plaintiffs – particularly for issues like same-sex bathrooms and dress codes. Karlan suggested that the bathroom issue is a straw man, because Title VII specifically addresses the situation and indicates that the central question is whether providing same-sex bathrooms denies someone an employment opportunity. “And it is hard to see, quite honestly, how requiring men to use a men’s room and women to use a women’s room denies them employment opportunities,” Karlan stressed. And the dress-code issue, Karlan continued, is one that the justices will have to address no matter how they rule in these cases.

Arguing on behalf of the employers, attorney Jeffrey Harris had to grapple with questions from Gorsuch and some of the court’s more liberal justices about the text of Title VII. Justice Elena Kagan led the way, telling Harris that the test to determine whether there is discrimination under Title VII is whether the same thing would have happened if the employee were a different sex. That test, she suggested to Harris, comes out against the employers: Although Bostock and Zarda were fired for being gay – that is, for being men who were attracted to other men – they would not have been fired if they were women who were attracted to men.

Gorsuch pushed back against Harris’ efforts to distinguish between sex and sexual orientation, pointing to the fact that Title VII only requires sex to be a cause. If Bostock and Zarda were men who liked other men, Gorsuch asked Harris, why wouldn’t that be enough to bring Title VII into play?

Gorsuch echoed that thought during the first 10 minutes that U.S. Solicitor General Noel Francisco spent at the lectern today, arguing on behalf of the federal government as a “friend of the court” supporting the employers in this case. When Francisco argued that there is a difference between sex and sexual orientation, Gorsuch responded that at least one contributing cause of the plaintiffs’ firings does appear to be sex.

At the second argument this morning, David Cole of the American Civil Liberties Union argued on behalf of Aimee Stephens, a Michigan funeral director. Stephens had dressed and appeared as a man until 2013, when she announced that she intended to live and work as a woman and would eventually have sex-reassignment surgery. Thomas Rost, the owner of the funeral home where Stephens worked, fired Stephens because she “was no longer going to represent himself as a man. He wanted to dress as a woman,” which Rost believed would violate “God’s commands.”

Cole described the case in simple terms. Stephens is being treated differently because of the sex she was assigned at birth. If she had been assigned a female sex at birth, he argued, she would not have been fired for wanting to come to work dressed as a woman. But instead she was assigned a male sex, Cole continued, and so she was fired because she failed to conform to the sex stereotypes of her employer. It can’t be the case, Cole asserted, that Ann Hopkins – the plaintiff in the Supreme Court’s original case on sex stereotyping – couldn’t be fired or denied a promotion for being insufficiently feminine, but Stephens could be fired for being insufficiently masculine.

Gorsuch conceded that the text of Title VII was “close.” But, he asked Cole, should the justices consider the “massive social upheaval” that would follow a ruling for the plaintiffs? Given the possibility that Congress did not consider this issue, Gorsuch posited, it might be a more appropriate task for Congress, rather than the judicial branch.
Cole rejected the premise of Gorsuch’s question. The courts of appeals have been recognizing these kinds of claims for 20 years, Cole told the justices, and transgender people have been using bathrooms without disruptions.

Justice Samuel Alito flagged another potential issue that he conceded “is not before us, but it will be coming”: the question of transgender athletes. If, Alito asked, “a transgender woman is not permitted to compete on a woman’s college sports team,” is that “discrimination on the basis of sex in violation of” Title IX, the federal civil rights laws governing education?
Cole responded that, as with questions about a dress code, the outcome in these cases likely would not affect questions related to transgender athletes, because regulations issued under Title IX specifically allow sex-segregated teams in some circumstances. Therefore, Cole concluded, the question would be how to apply that policy to transgender athletes.

As I’ve noted before, it’s generally inadvisable to draw conclusions from the questions that are asked at oral argument. While they can often be a signal as to which way a particular Judge is leaning in a particular case, that isn’t always the case. In some cases, the questions that Judges ask can be based on a desire for counsel for one side or the other to clarify some point set forth in the briefs that have been filed in the case, or to more fully address an issue that has been raised in the briefs of the parties or the amicus briefs filed by outside parties who may have an interest in the case. On other occasions, it can be looked at as a means for one of the Judges to try to address concerns expressed by one of their fellow Judges on the bench. On still other occasions, a question asked may simply be based on intellectual curiosity on the part of one of the Judges.

Putting those caveats to the side, though, it does appear from the questioning that there is a split among the Justices on the Court that roughly follows the liberal-conservative divide that we’ve all become familiar with. The one Justice who stands out from yesterday, interestingly enough, is Justice Neil Gorsuch who at least appeared sympathetic to the idea that existing civil rights laws could be interpreted to apply to sexual orientation and gender identity. At the same time, though, he also raised the valid concern that interpreting a fifty-five-year-old statute to cover what would effectively be entirely new categories of citizens would most assuredly have a potentially disruptive social impact, meaning that it would be better for courts to leave this issue to Congress and/or the state legislatures to decide. In that regard, it is worth noting that many states have already extended their civil rights laws to cover sexual orientation and gender identity, but obviously that does not apply beyond the boundaries of those specific states.

As I’ve stated before, the question before the Justices is seemingly simple, namely whether or not the bar in the Civil Rights Act of 1964 against discrimination in employment based on “sex” includes discrimination based on sexual orientation or gender identity The most important precedent in this regard is the Supreme Court’s ruling in a 1989 case called Price Waterhouse v. Hopkins. In that case, the Supreme Court found in favor of a female Plaintiff who had maintained that she had been denied partnership in the firm that employed her because she did not into the idea of what a female employee should look and act like. The ruling was significant for the purpose of anti-discrimination law because the Court ruled that sex discrimination under the Civil Rights Act included gender stereotyping and the action of discriminating against someone because they didn’t fit into some preconceived notion of what a person of a certain biological gender should be like was barred by Federal law. In this case, that would mean that a biological male who chooses to identify as a female or a female employee who, contrary to the existing stereotype prefers to date (or marry) another woman could not be discriminated against in employment.

In the past, I was skeptical of the argument that Title VII’s ban on discrimination based on “sex” applied to claims based on gender identity or sexual orientation because it seems clear from the legislative history that the drafters of the law did not even consider whether the law they were writing would apply to such claims. Based on the overwhelming weight of the court rulings on the discrimination issue, though, and upon further reflection, I’ve come to the conclusion that my previous position on this issue was faulty and that the Price Waterhouse precedent would clearly seem to apply here. Unless the Court is prepared to severely limit the holding in that case, it seems to me that, at least in the context of employment law, discrimination against transgender and gay Americans based on the fact that their behavior, style of dress, or personal relationships do not fit within pre-existing notions of what is “proper” for a biological male or female would seem to be clear examples of impermissible discrimination under the Civil Rights Act of 1964 and related law as interpreted in Price-Waterhouse. Whether a majority of the Justices agree with this opinion remains to be seen.

That being said, I also recognize the fact that these cases raise significant issues that go beyond the legal ones I noted above. As Justice Gorsuch notes, finding for the Plaintiffs in these cases would represent a significant expansion of civil rights laws that have stood largely untouched since they were passed into law in 1964 and upheld by the Court in 1965. For example, if the provisions against discrimination based on “sex” applies to employment discrimination then what does that mean for the provisions of the law that bar discrimination in public accommodations or for the equal opportunity in education protections that were created when Title IX was enacted some eight years after the initial law. If “sex” also covers sexual orientation and gender identity in employment, then it arguably must also apply in those other situations as well. As noted, it’s clear that Congress did not contemplate including either of these categories in the law when it was passed a half-century ago, and one has to wonder if it is a proper function of the courts to extend those laws rather than allowing the democratic process to deal with these issues. This is largely what Justice Gorsuch was referring to when he spoke of the cultural change that ruling for the Plaintiffs would create, which is why it will be interesting to see which side he comes down on. This is especially true given the fact that Gorsuch has shown signs of what could be an independent streak similar to that of Justice Kennedy, for whom Gorsuch clerked early in his legal career.

Even though this case was argued early in the term, it raises such a large number of legal, cultural, and political issues that will no doubt mean that it will take some time for an opinion to be drafted. Given that, I wouldn’t expect a decision in this case until perhaps the spring of 2020 or, potentially, not until the final weeks of the term in June of next year. In the meantime, if you are interested in the prior history of these cases and the arguments made by the various parties, you can access all of that information at the SCOTUSBlog Information Pages for each of the cases,  Bostock v. Clayton County, Georgia, Altitude Express Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission

Here are the transcripts for the oral argument:

Harris Funeral Homes v. EEO… by Doug Mataconis on Scribd

Harris Funeral Homes v. EEO… by Doug Mataconis on Scribd