All eyes turned to the U.S. Supreme Court on October 8, 2019, as the Justices heard oral arguments in three transgender and sexual orientation discrimination cases. Find out what happened, and what will happen next in the defense of LGBTQ employee rights.

In this blog post, I will review the oral arguments before the U.S. Supreme Court in the cases of Gerald Bostock and Donald Zarda’s sexual orientation discrimination case and Aimee Stephens’ transgender discrimination case. You can learn more about the cases here. I will discuss what the Justices had to say, and what will happen next in each case.

Sexual Orientation Discrimination Cases Rest “On the Basis of Sex”

The first set of oral arguments were on the consolidated cases of Bostock v Clayton County and Zarda v Altitude Express Inc. In both cases, male employees were fired from their jobs as a child welfare services coordinator and a skydiving instructor when their employers learned that they were gay and attracted to the same sex.

The Arguments For and Against Sexual Orientation Discrimination Protections

Attorney Pamela Karlan speaking on behalf of the employees, summarized their position by saying:

“When a[n] employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex, again in the words of Section 703(a), because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men.”

In other words, because a gay man is fired for loving a man but a straight woman isn’t fired for the same behavior, that is illegal sex discrimination. She continued:

“And when you tell two employees who come in, both of whom tell you they married their partner Bill last 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.”

But the attorney for the employers and the Solicitor General from the U.S. Department of Justice disagreed. They said there was a fundamental difference between sex and sexual orientation. When Congress passed Title VII of the Civil Rights Act, they couldn’t have meant to include sexual orientation discrimination in prohibiting discrimination “on the basis of sex”. After all, they said, at that time the act of gay sexual intercourse was illegal in many states. As long as an employer would treat gay men and lesbians the same — based on their attraction to the same sex — they argued that Title VII shouldn’t apply.

Transgender Discrimination Case Asks if Status or Gender Identity is Enough to Trigger Protections

The second set of oral arguments were in RG & GR Harris Funeral Homes, Inc v EEOC, where the funeral home fired Aimee Stephens, a transgender woman, when she informed her employer she would be presenting as female and complying with women’s dress code standards at work.

The Arguments For and Against Transgender Discrimination Protections

Attorney David D. Cole of the American Civil Liberties Union (ACLU) presented Aimee Stephens’s argument. He said:

“Harris Homes is treating Aimee Stephens differently because of her sex assigned at birth. If she had a female sex assigned at birth, she would not be fired. Because she had a male sex assigned at birth, she is fired. That is discrimination because of sex.”

The employee’s argument again was that what had happened was discrimination “on the basis of sex”, in this case, the sex assigned to Ms. Stephens at birth, and the sex stereotypes the funeral home owner held about how men and women identify, behave and dress. He continued:

“[T]he notion that somehow discriminating against someone because they are transgender is not discrimination, discriminating against them because of their sex I think falls apart because to say I’m discriminating against you because you are transgender is to say I am treating you differently from other people who have the same gender identity, because of your sex assigned at birth.”

The funeral home’s attorney, John Bursch, told the court, “Treating women and men equally does not mean employers have to treat men as women. That’s because sex and transgender status are independent concepts.” He and the Solicitor General refused to recognize transgender women, instead referring to them as “a man who identifies as a woman”. They said that Congress never included protections for a transgender classification independent of sex. Once again, the Solicitor General referred the Court to the fact that Congress had not yet amended Title VII to include separate protections for gender identity and sexual orientation.

The Justices’ Take on the Transgender and Sexual Orientation Discrimination Cases

It is always difficult to know what Supreme Court Justices are thinking just by listening to the oral arguments. Still, these hearings are the first opportunity attorneys and advocates have to gauge where the newly appointed Justices may fall on the issues of LGBTQ employee protections.

Several judges asked whether the employees were asking the Court to change the language of the statute to expand protections against transgender and sexual orientation discrimination. Justice Ginsburg and Chief Justice Roberts pushed for clarity on what Congress meant to do in 1964. Justices also asked whether this could be considered a “bona fide occupational qualification” to justify treating men and women differently, and whether there should be a religious exemption for employers who maintained sincerely held religious beliefs.

The Justices also spent a significant amount of time trying to anticipate the kinds of cases that could arise if they ruled in favor of protections for transgender employees on the basis of sex. They debated how the law could apply to sex-segregated bathrooms and sports teams.

At the end of the arguments, it seemed most of the Justices were leaning in their predicted directions. The Court’s 4 liberal Justices appeared to side with the employees while the more conservative Justices favored the employers. However, recently-appointed Justice Gorsch surprised commentators by asking questions that tended to swing in favor of LGBTQ protections. Even Justice Kavanaugh asked the employers’ attorney how the Court could distinguish “between the literal meaning of ‘because of sex’ and the ordinary meaning of ‘because of sex.’”

What Happens Next for LGBTQ Employee Protections

The oral arguments may be over, but that doesn’t mean advocates and attorneys can expect a decision soon. Most commentators believe the Court will wait until June 2020 to issue its decision, as it has in many other LGBTQ cases. At the same time, the U.S. House of Representatives have passed the Equality Act, which would explicitly add sexual orientation and gender identity to the list of protected traits under Title VII, though the Senate has not yet taken up the matter. Given the statements of certain key senators, it seems unlikely they will vote in favor of the law.

Even if the Supreme Court and Congress both fail to act to protect against transgender and sexual orientation discrimination, residents in many states, including New York, can still turn to their state Human Rights laws for additional protections. However, residents of other states, including the states where Aimee Stephens, Gerald Bostock and Donald Zarda were employed, could be left without important protections available to their cisgendered and straight coworkers.

At Eisenberg & Baum, we understand the importance of federal civil rights protection for gay and trans* Americans. Our employment discrimination attorneys, help LGBTQ workers protect their rights under Title VII, and state civil rights laws. We stay on top of changes in the law, so that you know we are using the best strategies against the discrimination you face at work. If you have been the victim of transgender or sexual orientation discrimination, contact us. We’ll meet with you and help create a strategy that protects you and moves you closer to equality.