Supreme Court to Decide Whether Landmark Civil Rights Law Applies to Gay and Transgender WorkersThe case will come down to Chief Justice Roberts vote.
The New York Times
By Adam Liptak
April 22, 2019
WASHINGTON — The Supreme Court announced on Monday that it would decide whether the Civil Rights Act of 1964 guarantees protections from workplace discrimination to gay and transgender people in three cases expected to provide the first indication of how the court’s new conservative majority will approach L.G.B.T. rights.
The Equal Employment Opportunity Commission has said the 1964 act does guarantee the protections. But the Trump administration has taken the opposite position, saying that the landmark legislation that outlawed discrimination based on race, religion, national origin and, notably, sex, cannot fairly be read to apply to discrimination based on sexual orientation or transgender status.
The three cases the court accepted are the first concerning L.G.B.T. rights since the retirement last summer of Justice Anthony M. Kennedy, a champion of gay rights. His replacement by the more conservative Justice Brett M. Kavanaugh could shift the court’s approach to cases concerning gay men, lesbians and transgender people.
The Supreme Court agreed to hear the case from New York, Altitude Express Inc. v. Zarda, No. 17-1623, along with one from Georgia that came to the opposite conclusion, Bostock v. Clayton County, Ga., No. 17-1618.The justices also agreed to hear a trans case.
The New York case was brought by a skydiving instructor, Donald Zarda, who said he was fired because he was gay. His dismissal followed a complaint from a female customer who had voiced concerns about being tightly strapped to Mr. Zarda during a tandem dive. Mr. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.”
The Georgia case was brought by a child welfare services coordinator who said he was fired for being gay. The 11th Circuit, in Atlanta, ruled against him in a short, unsigned opinion that cited a 1979 decision that had ruled that “discharge for homosexuality is not prohibited by Title VII.”
The justices also agreed to decide the separate question of whether Title VII bars discrimination against transgender people. The case, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, No. 18-107, concerns Aimee Stephens, who was fired from a Michigan funeral home after she announced in 2013 that she was a transgender woman and would start working in women’s clothing.According to Jillian Weiss “The Harris Funeral Home case, one of three for which the Supreme Court has granted cert, is only being reviewed regarding the question of whether Title VII protects transgender people from sex discrimination.”
I believe that all three of these cases hinge on the 1989 Supreme Court case of Price Waterhouse v. Hopkins.
Supreme Court Can Interpret ‘Sex’ in Many WaysTo paraphrase President Clinton “what is the definition of sex?”
In three gay- and trans-rights cases, the justices will have to weigh a law’s text versus its purpose — and politics will have its say.
By Noah Feldman
April 22, 2019
Does the ban on workplace discrimination based on “sex,” as laid out in Title VII of the 1964 Civil Rights Act, include discrimination based on sexual orientation and gender identity? U.S. Supreme Court agreed Monday to take up both questions in its October 2019 term, which means we will have legal answers to these questions sometime before June 2020. It’s potentially a big moment for LGBT rights.
It’s also a watershed moment for a question the Supreme Court has been struggling with in recent years: What is the right way to interpret statutes passed by Congress?
Two schools of thought have been contending for the last several decades. One approach, associated especially with Justice Stephen Breyer, asks about the purpose of legislation. The other, linked to the late Justice Antonin Scalia and now shared by several other justices, focuses on the text of the statute.
If you’re interested in the purpose of the law, you could ask a very narrow question: What was the purpose of the people who drafted Title VII? Your answer would be something like, “prohibiting discrimination against women.” That wouldn’t include discrimination based on sexual orientation or gender identity.
You could also, however, ask the purpose question more broadly: Not what was the bill writers’ purpose, but rather, what is the underlying purpose of a legislative ban on sex discrimination?
The Supreme Court has long held that sex discrimination includes discrimination based on sexual stereotypes. Discrimination based on sexual orientation can be understood as a kind of sex-stereotyping, based on the view that men should be attracted to women and women to men.I personally believe that Chief Justice Roberts will vote in our favor. I think he is starting to come believe that his court has to look at the broader issues and interpret the Constitution and not the literal words.
Something similar can be said with respect to discrimination against transgender people or those whose gender identity resists classification. Those who discriminate on the basis of these statuses are making the stereotypical assumption that people shouldn’t transition from one gender to another, or should perform the gender role associated with their birth sex rather than a different identity.
Both conclusions depend on interpreting Title VII in light of the purpose of combating sex-stereotyping.
What do you think about the case, will the scales of justice tip in our favor?
Update 4/25/19 6:00 PM
Even though the video is two years old but the case is now being heard by the Supreme Court.