The Supreme Court will decide next term whether federal law protects LGBT individuals from workplace discrimination, a major case on the politically divisive social and religious issue that will play out against the backdrop of the 2020 presidential election.
The justices announced Monday they will consider a trio of cases about prohibiting employment discrimination based on “sex” in Title VII of the Civil Rights Act of 1964 and whether it also covers sexual orientation and transgender persons.
The cases feature the firings of a transgender funeral home employee, a gay skydiving instructor who died in an accident as the lower courts were deciding his case, and a gay man who participated in a gay recreational softball league called Hotlanta.
LGBT advocates say the Supreme Court’s decision to hear these cases is historic. “Any decision by the Court on this matter could fundamentally alter the lives of people who already struggle to secure fair and equitable employment,” said Mara Keisling, executive director of the National Center for Transgender Equality.
And it is the first time the Supreme Court will decide an LGBT rights case since the retirement of Justice Anthony M. Kennedy, who wrote the opinions in a series of cases that helped usher in a new era of civil rights.
Kennedy was the deciding vote in the 2013 case to strike down the Defense of Marriage Act and the 2015 case to legalize same-sex marriage nationwide. Justice Brett M. Kavanaugh, appointed last year by President Donald Trump, now occupies that seat.
The two political parties take a starkly different approach to the issue. Democratic-backed legislation (HR 5) that, among other provisions, would provide LGBT protections has three Republicans among its 240 cosponsors. The House Judiciary Committee held a hearing on the bill this month.
And the Trump administration has told the Supreme Court that Congress did not mean the term “sex” to cover gender identity when it enacted the law more that 50 years ago, a reversal of the government’s official legal position from the Obama administration’s approach to the case.
“Notably, Congress has specifically prohibited discrimination based on ‘gender identity’ in other statutes, as a separate protected category in addition to ‘sex’ or ‘gender,’” the Justice Department told the justices in a brief in a case about a transgender employee.
The justices delayed a decision about whether to wade into the issue for months, making the announcement in just a few lines Monday without any additional comment or explanation.
One case is about Aimee Stephens, a transgender woman fired from a job at a Detroit funeral home about two weeks after she informed them she would move forward with her gender transition.
The funeral home said Stephens would violate the company’s sex-specific dress code and disrupt the healing process of grieving families, while Stephens said that discriminated against her based on the funeral home owner’s stereotypes about how women and men should look and act.
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The owner, Thomas Rost, says he is a devout Christian who interprets the Bible as teaching that sex is immutable. Rost has argued he would feel significant pressure to sell the business and give up his life’s calling because he would be “violating God’s commands” if a male employee presented himself as a woman.
The U.S. Court of Appeals for the 6th Circuit ordered R.G. & G.R. Harris Funeral Homes to allow her to dress and present as a woman at work, ruling that any person regardless of labels such as transgender can assert a sex-stereotyping claim under Title VII under a Supreme Court precedent.
That precedent will be a point of debate in the cases when the justices decide it in the term that starts in October.
In another case, Gerald Bostock says he was fired as a child welfare services coordinator in Clayton County, Ga., because he did not conform with gender stereotypes. He said he lost his job of 10 years when the county learned of his sexual orientation, his participation in the Hotlanta Softball League and his promoting of county volunteer opportunities to members of that league.
The county denies Bostock’s sexual orientation was a motivating factor in its decisions to audit the program he managed or fire him, and that the U.S. Court of Appeals for the 11th Circuit got it correct when it found Congress did not intend to prohibit discrimination when it enacted the 1964 law.
“This case is not about whether Congress should enact a statute prohibiting employment discrimination on the basis of sexual orientation as a matter of desirable public policy,” the county told the justices.
The third case is about New York skydiving instructor Donald Zarda, who filed a lawsuit against Altitude Express, Inc., for firing him. He told a female client that he was gay during a 2010 tandem skydive in which the instructor is strapped hip-to-hip and shoulder-to-shoulder with the client.
The woman later accused Zarda of inappropriately touching her and using his sexual orientation as a pretext for that behavior. Zarda later died in a skydiving accident and the case is being continued by his estate.
The cases are Altitude Express, et al., v. Melissa Zarda, et al., Docket No. 17-1623; Gerald Bostock v. Clayton County, Docket No. 17-1618; and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, et al., Docket No. 18-107.