Demonstrations outside the U.S. Supreme Court on the day of arguments in the workplace discrimination cases involving gay workers, on Oct. 8, 2019. Credit: Diego M. Radzinschi / ALM

In roughly two hours of arguments Tuesday, the U.S. Supreme Court struggled with whether a federal law against workplace discrimination protects gay, lesbian and transgender employees and whether the justices or Congress should answer that question.

The justices appeared divided on those issues, but mainly on the text of Title VII of the Civil Rights Act of 1964. The law bars employers from discriminating against workers "because of … sex" and the justices must decide whether that language encompasses sexual orientation and gender identity discrimination.

Throughout the two hours, the justices, with the exception of Justice Clarence Thomas, peppered the lawyers with hypotheticals as they probed the text of the act in two separate arguments involving three cases. Justice Brett Kavanaugh, who could be pivotal to the outcome, asked only one question. Dozens of corporations joined an amicus brief urging the court to broadly embrace protections for LGBT employees.

"The textual evidence is very close" on whether the law does bar discrimination because of sexual orientation and gender identity, Justice Neil Gorsuch said during one exchange. He questioned whether the justices should consider a potential "massive social upheaval" that such a decision would trigger.

But where Gorsuch might see some ambiguity in the text, Justice Elena Kagan saw clarity.

"Title VII is a statute about individuals," Kagan said. "Is a particular person being treated differently because of her sex? It's as simple as looking at the language of the statute, applying it to a particular individual, which Title VII insists that you do, and coming up with the obvious answer."

The "obvious answer" in the case of Aimee Stephens, who was fired after announcing her intent to transition from male to female, according to Kagan, is she was being treated differently because of her sex. "If she had not been assigned at birth the sex that she was assigned at birth, she would have been treated differently," Kagan said.

Tuesday's arguments were pathbreaking in the sense that the words "transgender" and "cisgender" were heard for the first time. And one of the advocates referred to "Saturday Night Live Pat" in a response to a question about a situation in which gender is ambiguous. She had to explain that "Pat" in the television skit was not known to be male or female.

Bostock v. Clayton County, Georgia, and Altitude Express v. Zarda, consolidated for one hour of argument, raised the question of sexual orientation under Title VII. R.G. and G.R. Harris Funeral Homes v. EEOC and Stephens focused on gender identity in the second hour.

"When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII," said Stanford Law's Pamela Karlan, representing Gerald Bostock and the estate of Don Zarda. "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 because the adverse employment action is based on the male employee's failure to conform to a particular expectation about how men should behave."

But Justice Samuel Alito Jr. raised with Karlan the second issue that appeared to divide the court. He told her that if the court rules in her favor, some people will say that the Title VII issue is a "big policy issue" and a different issue than the one Congress addressed in 1964. Congress has repeatedly declined to act on requests to address the sexual orientation issue.

"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," he said.

Karlan's opponents, Jeffrey Harris of the boutique firm Consovoy Park and U.S. Solicitor General Noel Francisco, argued that the sexual orientation and gender identity issues should be decided by Congress, not the high court. The EEOC, which has pushed for a broad reading of Title VII, did not join the Justice Department's brief in the Supreme Court.

Returning later to that question, Justice Sonia Sotomayor said to Francisco: "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?"

At what point, she added, does a court say the original Congress used very clear words about what the statute meant. "And regardless of what others may have thought over time, it's very  clear that what's happening fits those words. At what point do we say we have to step in?"

Francisco responded, "At the point when Congress actually addresses the issue."

John Bursch addressing media outside the U.S. Supreme Court on the day of arguments in the workplace discrimination cases. Credit: Diego M. Radzinschi / ALM

Francisco, Harris and John Bursch of Alliance Defending Freedom, counsel to the funeral homes, argued that "because of sex" did not include sexual orientation and gender identity because those are distinct traits or characteristics. Sex in 1964 and today, they contended, means man and woman. Title VII protects a woman from being treated worse than a similarly situated man and vice versa, they said.

ACLU national legal director David Cole, counsel to Stephens, faced a series of hypotheticals on the third issue that seemed on the minds of mainly the conservative justices: what happens to sex-segregated bathrooms, dress codes and other areas if Cole's side prevails?

But Cole said those issues have nothing to do with the Title VII case and however the justices rule, cases raising those issues could come before them.

 

Read more:

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EEOC Doesn't Sign Trump DOJ's Supreme Court Brief Against Transgender Employees

How Stanford's Pamela Karlan Got SCOTUS Argument Time in LGBT Cases

'I Wouldn't Write Those Words Today': Eugene Scalia Is Pressed About LGBT Rights