Supreme Court Title VII Hearings: The Future of LGBTQ Civil Rights Hangs in the Balance
When Donald Zarda, a sky-diving instructor from Long Island, tried to assuage a female customer’s discomfort with being strapped to him during a tandem dive by telling her he was “100% gay,” he never expected to be fired from his job after the customer filed a complaint with his employer.
Gerald Bostock, a Georgia government employee who spearheaded a program to help neglected and abused children, was subjected to derogatory comments and criticism after joining a gay softball league—which, he alleges, culminated in him being fired on account of his sexuality.
Aimee Stephens was fired from the funeral home, where she had worked for nearly six years, after informing her employer that she is transgender. Not only was she told that it would be “unacceptable” for her to come to work as her authentic self, but also faced additional complications navigating her illness without health insurance provided by her former employer.
All three individuals are the subjects of interrelated cases that will be heard by the Supreme Court on October 8th: Zarda v. Altitude Express, Inc., Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. All center around a fraught question—does existing federal law protect employees from discrimination on the basis of their gender identity and sexuality?
The broad potential ramifications of the cases in the current political climate have made them a flashpoint for advocates. Several groups, including NYC-based Housing Works, a non-profit committed to fighting homelessness and HIV/AIDS, have called for mass demonstrations on the day of the hearings, hoping to apply pressure to the court.
Currently, gender identity and sexuality protections for employees have been implemented sporadically on state and city levels. Only 21 states, DC, and a handful of cities explicitly prohibit employment discrimination based on sexual orientation and gender identity. Advocates argue that this patchwork of protections does not fully serve the needs of LGBTQ workers.
The cases being heard by the court on October 8th deal with federal law, which, if the cases prevail, would provide the basis to apply protections nationally. According to Title VII of the Civil Rights Act of 1964, discrimination based on race, color, religion, national origin, and sex is illegal. Legal debate centers on the the latter attribute—what is meant by descrimination based on “sex.” The Zarda, Bostock, and Harris Funeral Homes claim that protection based on “sex” extends to gender identity and sexual orientation because discrimination on those two fronts is derived from people making prejudiced, sex-based assumptions.
Efforts during the Obama-era moved in the direction of offering these protections. In 2014, President Barack Obama signed an executive order that made it illegal for the federal government or federal contractors to fire or refuse to hire people on the basis of sexual orientation or gender identity. Later that year, Attorney General Eric Holder instructed the Department of Justice (DOJ) to apply a more expansive understanding of Title VII cases—transgender status as a protected characteristic under the “sex” clause was included.
The Trump presidency, however, has marked a stark departure from the Obama administration’s trajectory on these issues. In amicus briefs filed in the three cases, the Trump administration argues the opposite—that “sex” pertains only to the preferential treatment of one “biological sex” (defined as solely male or female) over the other. In other words, the DOJ argues that as long as employers treat two men in a relationship the same as two women in a relationship, they can equally discriminate against both without violating Title VII. In the case of trans employees, Trump’s DOJ has argued that Title VII “does not speak to … a disconnect between an individual’s gender identity and the individual’s sex.”
The arguments put forth in the briefs reflect a broader anti-LGBTQ campaign by the Trump administration, which has rescinded Obama-era guidelines outlining federal protections for LGBTQ students and has proposed a ban on transgender soldiers in the military (which is now in effect). Vice President Mike Pence particularly has aroused fears in the LGBTQ community for his anti-LGBTQ record as Governor of Indiana and mishandling of an HIV epidemic. In 2017, President Trump allegedly joked that Pence “wants to hang” all gay people.
But the legal precedent that guided the Obama DOJ and the arguments of the plaintiffs in the three October 8 cases has roots deeper than this most recent administrative turnover. As early as 1994, Northwestern University law professor, Andrew Koppelman, argued that laws discriminating against gays and lesbians were akin to sex discrimination as these laws “reinforce the hierarchy of males over females.”
A Yale law professor, William Eskringe Jr., takes Koppleman’s argument a step further in a recent article, published in the Yale Law review. Eskringe argues that “sex”-based discrimination is inclusive of anti-LGBTQ discrimination because 1) prejudice against same-sex couples or trans people is a form of sex-based stereotyping; and 2) in the same way that discrimination against an interracial couple constitutes race-based discrimination, discrimination against a same-sex couple constitutes sex-based discrimination. Eskringe further claims that broadening the interpretation of sex aligns with the original intent of the legislation: to create a more equitable workplace.
“If an employer fires a woman because she is married to another woman, rather than a man, the employer has, literally, acted “because of” her sex (if she had been a man, marriage to a woman would have been fine) and because of the sex of her partner,” Eskringe writes in the article. “It is constitutionally jarring to know that, in most states, a lesbian couple can get married on Saturday and be fired from their jobs on Monday, without legal redress.”
The lawyers arguing the Zarda case appear to be taking a similar position— that his firing for being gay constituted discrimination based on what was “expected” of people of his gender. “The claim could accurately be framed entirely in terms of sex and nothing else: Zarda was fired for being a man attracted to men,” they wrote. “That is sex discrimination pure and simple.”
An important case that the legal teams for the Zarda, Bostock, and EEOC suits are looking to for precedent is Price Waterhouse v. Hopkins (1989), which held that gender stereotyping is a form of sex discrimination. In that case, the court ruled 6-3 in favor of a woman arguing that her employer denied her a promotion because she was not stereotypically “feminine.” In barring gender stereotyping, Hopkins established that an employer could not lawfully fire someone because their appearance or conduct was not sufficiently masculine or feminine according to their sex. The case also established a precedent that sex-based discrimination was still present even if sex was only one of the factors considered in the discrimination. One of the essential questions asked in Harris Funeral Homes is whether the court’s inclusion of gender stereotyping as a form of Title VII sex discrimination applies to trans people fired on account of their gender identity (as this breaks with their employer’s sex-based presumptions.)
Should the court elect to rule against Zarda, Bostock, and Stephens, the effects would be felt by every-day LGBTQ workers. In addition to leaving the door open to “at will” firing and hiring discrimination, resultant loss of employment is directly correlated to losing one’s housing, healthcare, and benefits. For Stephens, the trans woman at the center of the Harris case, navigating kidney failure without her employer-provided health insurance caused additional hardship for her and her partner.
A negative ruling for the petitioners would most prominently affect people in the LGBTQ community that are already the most vulnerable. LGBTQ immigrants, trans people, queer people of color, and in particular, trans people of color, are subgroups that face barriers to employment equity as it is.
Furthermore, the cases have the potential to reverberate beyond the LGBTQ community. The questions being asked of Title VII query whether employers are allowed to make sex-based assumptions about, and regulations for, anyone—including heterosexuals. For example, the Harris case in particular questions whether employers can require that their workers wear a gender-specific uniform.
Despite this seemingly convincing legal framework, many warn that there is a very real possibility that the courts could rule against the petitioners in the cases—reflecting growing anxieties around a changing role of the Supreme Court in LGBTQ civil rights advocacy.
For the past few years, the Supreme Court has been lauded (or, by some, denigrated) for “delivering” gay marriage and other expasions of LGBTQ rights. Overall, legal recognition of constitutional rights for the LGBTQ community has greatly expanded over the past twenty years beginning from Lawrence v. Texas (2003), which overturned anti-gay sodomy laws, to US v. Windsor (2013), which struck down federal laws barring states from legalizing same-sex marriage.
A potential turning point in this 20-year progression, however, is the departure of Justice Anthony Kennedy. Kennedy—an ardent supporter of LGBTQ rights on the bench and writer of the landmark Obergefell v. Hodges ruling, which leagalized same-sex marriage in all 50 states—left the court in 2018 and has been replaced by Trump-appointed Justice Brett Kavanaugh. Falling on the moderate to conservative ideological spectrum of the court, Kennedy was notable for being a “swing vote,” breaking with conservatives to be the deciding vote in high-profile cases on abortion and gay marriage. Having lost Kennedy’s critical swing vote, advocates are now faced with a 5-4 conservative, anti-LGBTQ majority on the court.
Yet, even the monumental wins for same-sex marriage and opinions of Justice Kennedy did not resolve other matters of discrimination for LGBTQ people in public accommodations, employment, education, and housing— particularly when LGBTQ civil rights are pitted against the religious freedoms of their dissidents. In one of his last rulings before retiring, Kennedy sided with the majority in Masterpiece Cakeshop v. Colorado Civil Rights Commission, better known as the “gay wedding cake” case, backing Jack Phillips, a bakery owner, who denied service to a gay couple on the grounds that serving them violated his sincere religious beliefs. The ruling in favor of Phillips was on narrow grounds pertaining solely to his case alone—refusing to answer the broader questions posed about the legality of LGBTQ discrimination when the party accused held religious freedom as a defense. By electing not to resolve the questions raised, Masterpiece—and Kennedy—left the question of religious freedom and LGBTQ civil rights in an ambiguous position.
Moreover, a shortcoming of the narrative that gay marriage solidified gay rights is that the ruling did very little to address discrimination faced by transgender people. This is what makes the Harris Funeral Homes case so crucial— an understanding of Title VII that protects against transgender discrimination would have broad ramifications, even extending to students petitioning to use the bathroom of their choice.
Another part of what makes the October 8 cases distinct from a case like Obergefell is that they deal with statutory law—laws written by Congress—rather than constitutional interpretation. This gives the court not only a more extensive legislative history to consider in their interpretation, but also another determination to make: they could rule that while Title VII could be extended to include sexual orientation and gender identity, the current language of the bill does not. In this case, it falls to Congress to update the legislation. Measures like the Equality Act, which passed the House in May (but is presumed dead in the Republican-controlled Senate), would seek to do this.
The stakes in these cases would be high under any administration, but they are especially high in this political moment. Title VII cases making their way to the Supreme Court are fairly rare, and Supreme Court cases in general are difficult to overturn. The October 8 cases will be heard by a court that includes two new Trump-appointed justices with troubling records on LGBTQ rights. Moreover, any new challenges working their way through lower courts have been stacked with Trump-appointed judges, many with similar conservative outlooks. According to Lambda Legal, more than one-third of Trump judges are anti-LGBTQ, and many are associated with LGBTQ hate groups. In an unsympathetic court system, bringing forth a challenge could potentially prompt a rollback on LGBTQ civil rights. Just last month, New York City Council revealed it was considering repealing an ordinance banning conversion therapy out of fear that the law would be challenged in the courts, resulting in bans on prohibitions of conversion therapy elsewhere. (Alliance Defending Freedom, which brought forth the conversion therapy suit, is also representing the funeral home owners in Harris Funeral Homes.)
The October 8 hearings will make substantive arguments about the inclusion of sexual orientation and gender identity discrimination in sex discrimination, which will have a profound impact on LGBTQ community in the United States. But regardless of the outcome, the future of LGBTQ civil rights in the legal sphere is increasingly murky—at a time where these protections are most needed.