SCOTUS Sharply Divided Over the Meaning of 'Sex'

Justices heard oral arguments in LGBT job discrimination cases
By Newser Editors and Wire Services
Posted Oct 8, 2019 2:47 PM CDT
Key SCOTUS Cases Could Hinge on Trump Nominees
A Human Rights Campaign supporter takes part in a rally outside the Supreme Court during oral arguments on non-discrimination protections for LGBTQ workers on Tuesday Oct.12, 2019 in Washington.   (Kevin Wolf/AP Images for Human Rights Campaign)

We won't know the outcome until summer 2020, and the hints that came out of the Supreme Court on Tuesday weren't very revealing ones. The major question it's weighing: Does the Civil Rights Act of 1964 cover LGBT people when it comes to discrimination in employment? The divisions that emerged were sharp. The AP reports the court's four liberal justices are expected to come down on the side of the workers who were fired due to their sexual orientation or transgender status. But will a conservative justice join them? The standout things to know:

  • The three cases involve a skydiving instructor from New York and a county government worker in Georgia who were fired for being gay and a fired transgender funeral home director from Michigan. There are 28 states that offer little or no workplace protections for LGBT people.
  • USA Today sets the stage: "Rather than claiming a constitutional right to equal treatment, the challengers must convince at least five justices that the word 'sex' in the Civil Rights Act of 1964 incorporates sexual orientation and gender identity."
  • It, along with other outlets like CNBC, have this takeaway after two hours of oral arguments: It will likely come down to President Trump's two nominees: Justice Brett Kavanaugh and Justice Neil Gorsuch. In Vox's view, Gorsuch emerged as the likeliest swing vote.

  • Chief Justice John Roberts and Kavanaugh gave little in the way of hints regarding their views; Gorsuch saw arguments in favor of the workers but wondered whether the justices should take into account "the massive social upheaval" that might follow a ruling in their favor. Justice Clarence Thomas said nothing.
  • As for Justice Samuel Alito, he said that Congress in 1964 did not envision covering sexual orientation or gender identity. "You're trying to change the meaning of 'sex.'" Justice Ruth Bader Ginsburg countered that Congress also could not have foreseen sexual harassment as a kind of sex discrimination in 1964, either.
  • The Trump administration and lawyers for the employers hit hard on the changes that might be required in bathrooms, locker rooms, women's shelters, and school sports teams if the court were to rule that the Civil Rights Act of 1964 covers LGBT people. Lawmakers, not unelected judges, should change the law, they argued, and said Congress could easily settle the matter by amending Title 7 to include LGBT people. Legislation to that effect is pending in Congress, but is not likely to pass the Republican-controlled Senate.
  • The appeals under consideration involve Gerald Lynn Bostock, 55, who claims he lost his job working for Clayton County, Georgia, after he began playing in a gay recreational softball league.
  • Skydiving instructor Donald Zarda was fired shortly after telling a woman he was preparing to take on a dive that he was gay. Zarda, who worked for Altitude Express on New York's Long Island, said he would sometimes reveal his sexual orientation to allay concerns women might have about being strapped together during a dive. Zarda died in 2014 at age 44; his sister and former partner are representing him.
  • Aimee Stephens, 58, lost her job when she told Thomas Rost, owner of the Detroit-area RG and GR Harris Funeral Homes, that she had struggled with gender identity issues almost her whole life. She was planning to exchange the dark suit and tie she had worn to work for nearly six years as an embalmer and funeral director for a conservative dress or skirt that was required for women who worked for Rost. Rost told Stephens her plan wouldn't work and let her go.
(Read more Scotus stories.)

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