When the Supreme Court’s nine members take their seats Monday for the start of their next term, the justices will waste little time before confronting a trio of cases that could have major implications for gay and transgender rights.
On Tuesday, the court will hear arguments in legal disputes involving the scope of Title VII of the Civil Rights Act, which prohibits workplace discrimination on the basis of sex, race, color, national origin, and religion. The justices will be tasked with deciding whether those protections extend to workers who are gay or transgender.
The issue, one of the most consequential the justices will weigh this term, was raised by three separate cases the Supreme Court announced it would hear in April.
Two of the disputes involve employees who argue they were fired because of their sexual orientation.
Donald Zarda, a skydiving instructor, was terminated 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 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.”
Gerald 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 fired that year for “conduct unbecoming of a county employee.”
But Bostock sued, saying the county falsely accused him of mismanaging money “as a pretext for terminating his employment 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 raises the question on whether Title VII’s prohibition on sex discrimination includes discrimination on the basis of gender identity.
Aimee Stephens, a transgender 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. Stephens filed a discrimination charge with the Equal Employment Opportunity Commission in September 2013, arguing she was fired because of her gender identity.
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 argues it’s up to Congress to clarify the reach of the law.
The cases have attracted the attention of states, religious groups, elected officials across all levels of government, and major companies, which have filed dozens of friend-of-the-court briefs with the high court.
They will also give court watchers a glimpse into how Justice Brett Kavanaugh, the Supreme Court’s newest member, will approach cases involving gay and transgender rights. Kavanaugh replaced Justice Anthony Kennedy following his retirement last year, cementing a 5-4 conservative majority on the Supreme Court. Kennedy, who served as the court’s swing vote for more than a decade, authored the majority opinions in all major gay rights cases decided by the court.
The term beginning Monday stands in sharp contrast to the Supreme Court’s docket last year, when it heard few blockbuster cases that produced 5-4 rulings split along ideological lines. The slate of major cases the justices are poised to decide, which involve guns, immigration, and abortion, will put a spotlight on the Supreme Court’s rightward shift.
After hearing arguments in the three cases involving gay and transgender rights, the justices on Nov. 12 will consider whether the Trump administration acted within legal bounds when it attempted to end the Deferred Action for Childhood Arrival program, implemented by President Barack Obama in 2012.
The Trump administration rested its justification for rescinding DACA on the belief that it was created “without proper statutory authority,” but two federal courts of appeals said the move was unlawful.
On Dec. 2, the justices are scheduled to hear its first Second Amendment case in nearly a decade. The dispute involves regulations in New York City that restricted where licensed gun owners could take their unloaded and locked handguns. But the Supreme Court could dismiss the case, as New York City changed the regulations the gun owners said violated their Second Amendment rights.
The gun rights case prompted a partisan spat involving four Democratic senators who, in a brief filed with the court, said the Supreme Court is “not well” and warned it could face public backlash if it doesn’t toss out the dispute. All 53 Republicans sent a letter to the clerk of the Supreme Court urging the justices not to cower to what they said was an attempt to intimidate them.
The justices will also tackle a challenge to a Louisiana law that requires doctors performing abortions to have admitting privileges at a nearby hospital. The Supreme Court heard a similar case in 2016 involving Texas rules, and the justices ruled 5-3 then that the restrictions posted an “undue burden” on women seeking an abortion.
Kennedy joined the court’s liberal bloc in striking down the Texas restrictions, but with Kavanaugh now on the court abortion rights advocates fear a ruling in the Louisiana case could be the first from the court, now with a solid conservative majority, to chip away at abortion rights.
In addition to taking up cases touching on controversial issues, the Supreme Court will look at the sentence of Lee Boyd Malvo, one of the “D.C. snipers” who carried out a series of shootings in the Washington, D.C.-suburban area. Malvo, who was 17 at the time of the rampage, was sentenced to life without parole but appealed in 2013 after the Supreme Court found mandatory life sentences without parole for minors are unconstitutional.
The justices are also set to weigh in on the case involving Bridget Kelly and Bill Baroni, two former aides to New Jersey Gov. Chris Christie who were convicted in the “Bridgegate” scandal.
Waiting in the wings for the Supreme Court are a number of disputes weaving their way through the lower courts that directly involve President Trump, including over congressional subpoenas for his financial records and tax returns and whether he violated an anti-corruption provision of the Constitution by profiting off of foreign governments that visit his properties.
Rulings in the cases this term will come by the end of June, in the heat of the 2020 presidential campaign.
