A closely divided Supreme Court grappled Tuesday with the reach of a federal civil rights law that bars discrimination in the workplace on the basis of sex.
Justice Neil Gorsuch, appointed by President Trump, could play a crucial role in deciding whether those protections extend to gay and transgender individuals. At times, Gorsuch was sympathetic to workers who argue the text of the statute in question is clear in its protection of employees against being fired because of their sexual orientation or transgender status.
Tapped for the high court to fill the late Justice Antonin Scalia’s seat, Gorsuch conceded the question in the three cases before the court is “really close on the textual evidence.”
Still, he expressed concern that because a ruling in favor of the plaintiffs, Gerald Bostock and Donald Zarda, who said they were fired because they are gay, and Aimee Stephens, who said she was fired after transitioning from a man to a woman, could lead to “massive social upheaval,” the decision should be best left to the legislative branch.
The question, Gorsuch said, is a “matter of the judicial role and modesty in interpreting statutes that are old.”
Joining Gorsuch in his concerns about whether the Supreme Court would be assuming the role of Congress was Justice Samuel Alito, who was the most skeptical of the employees’ arguments. Alito asked Pamela Karlan, who argued on behalf of Bostock and Zarda, to address criticism that if the Supreme Court bars discrimination based on sexual orientation, it would be “acting exactly like a legislature.”
[Read more: Justice Neil Gorsuch warns of Supreme Court danger: ‘Nine older people sitting in Washington making stuff up’]
Congress, Alito said, has been asked “repeatedly” since the passage of the Civil Rights Act in 1964 to address workplace protections for gay and transgender individuals but has declined to do so.
“Discrimination on the basis of sex in the sense that Congress understood it in 1964 is a different concept from discrimination on the basis of sexual orientation,” he said. “You’re trying to change the meaning of what Congress understood sex to mean and what everybody understood sex to mean in 1964.”
Chief Justice John Roberts also noted that 22 states have passed laws to extend coverage against discrimination on the basis of sex to gay and transgender individuals. Those state measures, he said, include an exemption for religious organizations.
The cases before the Supreme Court on Tuesday mark the first test of how the high court, now without longtime swing vote Justice Anthony Kennedy on the bench, will address gay rights.
Justice Brett Kavanaugh replaced Kennedy on the Supreme Court last year, but he didn’t rule on cases centered on the issue while serving as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Kavanaugh hardly spoke during the two hours of arguments, asking only one question about the “literal meaning of ‘because of sex’ and the ordinary meaning of ‘because of sex.’”
Justice Clarence Thomas returned to the bench Tuesday after missing oral arguments Monday because he was sick. As is customary, he did not ask any questions.
Justice Elena Kagan stressed the court doesn’t look to “predictions,” “desires,” or “wishes” in interpreting statutes, but rather to “laws,” arguing the plain text of Title VII encompasses sexual orientation and transgender status.
“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,” Kagan 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? Yes, you did. Because you fired the person because this was a man who loved other men.”
The court’s liberal bloc seemed to firmly agree that discrimination against an employee because of sexual orientation or transgender status violates Title VII’s ban on employment discrimination on the basis of sex.
“At what point does a court continue to permit invidious discrimination against groups that, where we have a difference of opinion, we believe the language of the statute is clear,” Justice Sonia Sotomayor asked.
The dispute before the justices centered on the scope of Title VII of the Civil Rights Act, which bars workplace discrimination on the basis of sex, race, color, national origin, and religion.
Two of the cases before the high court involved employees who argued their employment was terminated because of their sexual orientation.
Zarda, a skydiving instructor, was fired from Altitude Express, a skydiving company, after a woman accused him of touching her inappropriately and disclosing his sexual orientation during a tandem skydive in 2010. Zarda, who has since died, said he was fired because he “honestly referred to [his] sexual orientation and did not conform to the straight male macho stereotype.”
The 2nd U.S. Circuit Court of Appeals sided with Zarda, ruling “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination for purposes of Title VII.”
Bostock, meanwhile, argued he was fired from his job as a child welfare services coordinator for the Clayton County Juvenile Court System because of his sexual orientation. Bostock, who started participating in a gay recreational softball league in 2013, was terminated that year for “conduct unbecoming of a county employee.”
But Bostock said the Georgia county falsely accused him of mismanaging money “as a pretext for terminating his employment because of his sexual orientation” and sued, alleging he was terminated because of his sexual orientation in violation of Title VII.
The 11th U.S. Circuit Court of Appeals sided with Clayton County and found Title VII did not protect against discrimination based on sexual orientation.
The third case raised the question of whether discrimination because of an employee’s transgender status violates Title VII’s ban on employment discrimination on the basis of sex.
Stephens, a trans woman, was fired from R.G. & G.R. Harris Funeral Homes after she informed her employer in 2013 she suffered from gender dysphoria and would wear women’s clothing to work.
The 6th U.S. Circuit Court of Appeals ruled for Stephens and found “discrimination on the basis of transgender … status violates Title VII.”
The Equal Employment Opportunity Commission has said Title VII’s protections extend to gay and transgender individuals. But the Trump administration disagrees, and Solicitor General Noel Francisco argued it’s up to Congress to clarify the reach of the law.
While the question focused on Title VII’s protections against workplace discrimination on the basis of sex, the more than two hours of oral arguments were punctuated with questions about sex-specific bathrooms, dress codes, and sports teams.
Lawyers on both sides of the debate, however, stressed the question of sex-specific facilities was not before the court at this time.
A ruling from the Supreme Court is expected by the end of June.
