If you’re a regular reader of our blog, or if you’ve been paying attention to the news in recent weeks, you may have read about the momentous trio of cases that were argued in front of the U.S. Supreme Court last week. The Bostock, Zarda, and Harris Funeral Homes cases all deal with Title VII of the Civil Rights Act, which prohibits discrimination in employment on the basis of race, color, national origin, sex, and religion.
Gerald Bostock is a gay man who was fired from his job with a county court in Georgia when he joined a gay softball league and promoted it at work as volunteerism. Donald Zarda was a gay man who was fired from his job in New York as a skydiving instructor when he came out to a female customer. Zarda died in 2014, and his estate has carried on the litigation. Aimee Stephens is a transgender woman who wished to transition at work and was fired from her job at a Michigan funeral home after making the request.
The central question these cases have asked the Court to answer is whether “sex” in Title VII includes sexual orientation and gender identity or expression. That is, whether it is legal under Title VII to fire someone for being gay or transgender. For decades, many federal courts and agencies across the country have been interpreting Title VII’s prohibition on sex discrimination expansively to include discrimination based on SOGIE status.
On Oct. 8th, the parties’ attorneys made their arguments in front of the nine Supreme Court justices. During the allotted time, the justices had an opportunity to pepper counsel with questions. Analyzing oral arguments—reading the transcripts and listening to the audio—to try to decipher which way a given justice is leaning on an issue is a bit like reading tea leaves.
That being said, a few things stood out to me upon reading the argument transcripts:
- The justices—and counsel—struggled at times with language and SOGIE concepts throughout the arguments. There is still much work to be done in educating folks on these issues, in society as a whole and particularly in the legal field.
- A few of the conservative justices asked questions revealing worries over religious exemptions, bathrooms, sex-segregated sports, and gendered dress codes. All of the bogeyman concerns we’ve heard before in our work. Attorneys for the fired employees did a good job in fielding those questions.
- Justice Gorsuch at one point seemed to recognize that discrimination according to sexual orientation would necessarily be discrimination contingent upon sex. But then in a different line of questioning, he suggested that an expansive view of “sex” under Title VII, as the fired employees are asking for, might cause “massive social upheaval.” Many experts are calling Justice Gorsuch a key vote in these cases.
Aimee Stephens on last week’s arguments:
“I am thrilled to be at the highest court in the land today to remind the justices with my presence that women like me exist, and that trans people have every right to the same protections as everyone else. Firing me because I’m transgender was discrimination, plain and simple, and I hope the Court rules that no one has to endure the harm and suffering my former employer forced me to experience.”
Melissa Zarda’s response:
“My brother Don was my rock, my everything. I stood in the Supreme Court today to honor his memory and continue the fight for fairness that he would want me to continue. I believe that in this country, you should not be fired for being gay, and I hope that the Court recognizes that what happened to Don was wrong and should never happen again.”
The Supreme Court’s decision on these cases likely will not be released until next spring or early summer. The Court has until the end of June 2020 to issue the decision.
Regardless of the Court’s decision, the cases make clear how imperative it is that we pass the Ohio Fairness Act and the federal Equality Act—which would ensure all LGBTQ folks are protected from discrimination, not only in employment but also in housing and public accommodations.