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to Section One | to Arts & Entertainment
posted Friday, April 26, 2019 - Volume 47 Issue 17
SCOTUS to hear LGBT discrimination cases next term
Section One
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SCOTUS to hear LGBT discrimination cases next term

Decisions by June 2020

by Mike Andrew - SGN Staff Writer

The US Supreme Court said on April 22 that it would hear three related LGBT discrimination cases in its next term. Decisions on the cases would come by the end of the court's term in June 2020.

All three cases have to do with workplace discrimination against LGBT employees. They turn on whether existing federal laws barring discrimination on account of sex also protect sexual orientation and gender identity.

In the consolidated cases Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, a skydiving instructor and a child welfare services coordinator, respectively, said they were fired for being Gay.

In R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a funeral home employee said she was fired because she came out as Transgender.

Collectively, the three cases will determine the meaning of Title VII of the Civil Rights Act, which says that employers may not discriminate based on 'sex.'

The law doesn't explicitly prohibit anti-LGBT discrimination, but the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing federal anti-discrimination laws in the workplace, has ruled that LGBT employees are protected under Title VII.

The Obama-era Department of Justice (DOJ) agreed, and so have a number of federal courts. In R.G. & G.R. Harris Funeral Homes v. EEOC, for example, the 6th Circuit Court of Appeals found that 'it is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex.'

But some courts have also ruled against a pro-LGBT reading of Title VII. The 11th Circuit Court, for example, said that 'discharge for homosexuality is not prohibited by Title VII.'

In a major reversal of DOJ policy, the Trump administration has also argued that Title VII doesn't prohibit discrimination based on sexual orientation or gender identity.

The arguments on both sides
Trump's DOJ argues that sexual orientation and gender identity are not protected by existing federal civil rights laws, because the authors of those laws never intended to ban anti-LGBT discrimination and never believed that the word 'sex' in the legislation they wrote covered sexual orientation and gender identity.

LGBT rights advocates, on the other hand, say that legal precedent establishes that the original intent of laws' authors is irrelevant.

Joshua Block, an attorney with the ACLU LGBT and HIV Project, said that the US Supreme Court decision in Oncale v. Sundowner Offshore Services Inc. (1998) establishes that the intent of legislators doesn't overrule a plain reading to the law's text.

In the Oncale case, the high court unanimously agreed that bans on sex discrimination prohibit same-sex sexual harassment, even though the authors of federal civil rights laws never considered that possibility.

'Oncale says that's irrelevant whether [Congress] contemplated it,' Block explained. 'This is literal sex discrimination. Whether or not that's what Congress was focused on doesn't make it any less a type of discrimination covered by the statute.'

How the decision may come down
It's unclear how the Supreme Court will rule. The Court now seems to have a solidly conservative majority on LGBT issues. Former Justice Anthony Kennedy, an LGBT ally despite his conservative record on most other issues, retired in 2018 and was replaced by Brett Kavanaugh. That could be bad news for LGBT rights.

It's also possible the high court may split the difference, and rule that Trans workers are covered under Title VII, but Lesbian, Gay, and Bi workers are not.

This would mirror the process by which the EEOC and the Obama administration came to protect LGBT rights. The EEOC first ruled that Title VII protects gender identity in 2012 but did not extend its reasoning to cover sexual orientation until 2015.

Even if the Supreme Court rules that Title VII does ban discrimination based on sexual orientation and gender identity, under federal law that would only create explicit protections in the workplace, housing, and schools, but not public accommodations. Federal civil rights laws don't ban sex discrimination in public accommodations, leaving a significant a loophole in nondiscrimination laws.

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