The Supreme Court will hear cases on whether existing civil rights law prohibits anti-LGBTQ discrimination, the court announced today.
The court agreed to take three cases, two involving discrimination based on sexual orientation, one on gender identity, The Washington Post reports. It will hear them in the term that begins in October.
One involves Donald Zarda, a skydiving instructor who was fired from his job in 2010 after telling a client he was gay. His employer, New York-based Altitude Express, contended he was fired for touching the client inappropriately. The U.S. Court of Appeals for the Second Circuit, while not ruling on the merits of the case, did rule last year that Title VII of the Civil Rights Act of 1964, in banning sex discrimination, also bans sexual orientation discrimination. Altitude Express appealed to the Supreme Court, saying that the scope of the law should be decided by legislators, not the courts. There is also the matter that Altitude Express has now been acquired by another company, so there is a question as to whether its new owner can be held liable. Zarda died in an accident in 2014, but his sister and his partner, as executors of his estate, have continued to pursue the case.
In the other sexual orientation case, Gerald Bostick, a social worker employed by Clayton County, Ga., said he was fired for being gay. County officials said his firing was for other reasons. In his case, the Eleventh Circuit Court of Appeals said Title VII did not apply because it did not explicitly address sexual orientation. The Supreme Court often agrees to hear cases where there is disagreement between circuits, known as a "circuit split."
In the gender identity case, funeral director Aimee Stephens was fired from a Michigan funeral home company in 2013 after she began presenting as a woman at work. The company, R.G. & G.R. Harris Funeral Homes, said she violated its dress code by wearing women’s clothing; her boss, Thomas Rost, also said she violated his religious beliefs about gender being God-given and immutable. The Seventh Circuit Court of Appeals ruled that companies cannot arbitrarily fire trans people and that discrimination based on gender identity is inseparable from discrimination based on sex. The funeral home operator, represented by the anti-LGBTQ Alliance Defending Freedom, appealed to the Supreme Court, objecting to that expansive interpretation of sex discrimination law.
The ADF won a qualified victory at the Supreme Court last year in the case of Colorado baker Jack Phillips, owner of Masterpiece Cakeshop. He refused to create a wedding cake for a same-sex couple because of his religious beliefs. The court ruled in Phillips’s favor, saying the Colorado Civil Rights Commission had shown insufficient respect for his religion. But it did not recognize a broad license to discriminate.
In hearing these cases, the high court, which now has a conservative majority, could have a huge effect on LGBTQ rights. Attorneys representing the LGBTQ people involved were optimistic, however, during a conference call with reporters Monday.
"I believe that the court will read the plain language of the statute as they did in the Oncale case," said Gregory Antollino, the attorney for Zarda's estate. In that case, Oncale v. Sundowner Offshore Services, the Supreme Court unanimously ruled in 1998 that Title VII prohibits same-sex sexual harassment. The late Justice Antonin Scalia, famous for his conservatism, wrote the opinion, and another conservative justice still on the court, Clarence Thomas, concurred in it.
James Esseks, director of the American Civil Liberties Union's Lesbian Gay Bisexual Transgender & HIV Project, said the court would be "going out on a limb" to rule that Title VII does not cover sexual orientation and gender identity. The ACLU represents Stephens and is also co-counsel with Antollino in the Zarda case.
Whichever way the Supreme Court eventually rules, the attorneys said, it stands to affect not just employment but housing, health care, and other arenas in which federal law bans sex discrimination. But the Civil Rights Act does not address sex discrimination in public accommodations, which the Equality Act, recently introduced in Congress, seeks to rectify, along with adding explicit protections against discrimination based on sexual orientation to the law.
Various civil rights groups said the cases taken up by the Supreme Court underscores the need for the Equality Act.
“No one should be denied a job or fired simply because of who they are or who they love, including LGBTQ people,” said Sarah Warbelow, legal director for the Human Rights Campaign, in a press release. “The growing legal consensus is that our nation’s civil rights laws do protect LGBTQ people against discrimination under sex nondiscrimination laws. The Supreme Court has an opportunity to clarify this area of law to ensure protections for LGBTQ people in many important areas of life. The impact of this decision will have very real consequences for millions of LGBTQ people across the country. Regardless of the eventual outcome, it’s critical that Congress pass the Equality Act to address the significant gaps in federal civil rights laws and improve protections for everyone.”
“People should have the right to love who they love and be who they are without fear of losing their job,” added Laura Durso, vice president of the LGBT Research and Communications Project at the Center for American Progress. “Too many lesbian, gay, bisexual, and transgender people face bias in the workplace, making it harder to provide for themselves and their families. The Supreme Court should affirm the growing consensus of federal courts in recognizing the reality of this discrimination in order to ensure that LGBT employees are guaranteed the same protections afforded to other workers.”
Greg Nevins, senior counsel and workplace fairness program strategist for Lambda Legal, noted, “Title VII obviously requires equal treatment of men and women, so it was wrong to treat Donald Zarda (or Gerald Bostock) differently because of his attraction to men, when a Donna Zarda or Geraldine Bostock would not have endured discrimination for liking men. And when Aimee Stephens’ employer fired her after learning that she was undertaking a gender transition, her employer discriminated against her because of sex. These arguments couldn’t be more straightforward, and we are hopeful that the court will confirm that they are correct.”
And Sarah Kate Ellis, GLAAD’s president and CEO, issued the following tweet:
With Trump stacking the Supreme Court with anti-LGBTQ judges it’s clear that we need a constitutional amendment that protects LGBTQ people and all marginalized communities. https://t.co/l5r00C97FB
— Sarah Kate Ellis (@sarahkateellis) April 22, 2019