October 16, 2019
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Court to decide if anti-discrimination laws protect on basis of sexual orientation, gender identity

J. Scott Applewhite | AP
J. Scott Applewhite | AP
In this Jan. 24, 2019, photo, the Supreme Court is seen at sunset in Washington.

WASHINGTON — The Supreme Court on Monday added what could be landmark civil rights cases to its docket for the next term, examining whether federal anti-discrimination laws protect on the basis of sexual orientation and gender identity.

The court accepted three cases for the term that will begin in October. They include a transgender funeral home director who won her case after being fired; a gay skydiving instructor who successfully challenged his dismissal; and a social worker who was unable to convince a court that he was unlawfully terminated because of his sexual orientation.

The cases shared a common theme: whether Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, is broad enough to encompass discrimination based on gender identity or sexual orientation.

Some states protect gay and transgender workers, but federal courts have split on whether federal law provides protection.

Few would venture that Congress had transgender and gay Americans in mind decades ago when it prohibited discrimination on the basis of sex. But the Equal Employment Opportunity Commission and some courts have said that the language is broad. The Obama administration thought so, but the Trump administration has taken the opposite stance.

The U.S. Court of Appeals for the 6th Circuit said it was “analytically impossible” not to take into account a person’s sex when deciding whether to fire them for being transgender.

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“Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex,” the court ruled.

Overturning such a ruling “would be disastrous, relegating LGBTQ people around the country to a second-class citizen status,” said James Esseks, director of the American Civil Liberties Union LGBT & HIV Project. “The LGBTQ community has fought too long and too hard to go back now, and we are counting on the justices not to reverse that hard-won progress.”

The court was considering the case of Aimee Stephens, who had worked for R.G. and G.R. Harris Funeral homes for six years as Anthony Stephens. “At the end of my vacation on August 26, 2013, I will return to work as my true self, Amiee [sic] Australia Stephens, in appropriate business attire,” Stephens wrote to co-workers.

But two weeks later, the company’s owner, Thomas Rost, fired Stephens. Rost acknowledged firing Stephens “because he was no longer going to represent himself as a man. He wanted to dress as a woman.”

Alliance Defending Freedom, a conservative legal group, is defending Rost.

“Neither government agencies nor the courts have authority to rewrite federal law by replacing ‘sex’ with ‘gender identity’ — a change with widespread consequences for everyone,” ADF senior counsel John Bursch said in a statement.

“Businesses have the right to rely on what the law is — not what government agencies want it to be — when they create and enforce employment policies. The funeral home wants to serve families mourning the loss of a loved one, but the EEOC has elevated its political goals above the interests of the grieving people that the funeral home serves.”

Stephens’s lawyers noted that the 6th Circuit had an alternative reason for ruling for their client: a 1989 Supreme Court decision that said it was illegal to discriminate against workers because they did not conform to gender stereotypes.

The court accepted two cases involving sexual orientation.

One involved Donald Zarda, a gay skydiving instructor. Zarda jokingly told a woman who was going to be strapped to him for a dive not to worry because he was gay. But she and her boyfriend later complained that Zarda had touched her inappropriately. The company, Altitude Express, dismissed him, and Zarda sued.

Zarda died in 2014 in a base-jumping accident in Europe, and his case was carried forward by his sister and a former partner. There were questions about whether the now-dissolved company for which he worked could be held liable.

The U.S. Court of Appeals for the 2nd Circuit did rule, though, that the anti-discrimination law protected Zarda.

“Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” it ruled.

The U.S. Court of Appeals for the 11th Circuit ruled the other way, in a short order based on circuit precedent. It ruled against Gerald Lynn Bostock, who said he was fired from his job as a social worker after his employers discovered that he was gay. Officials in Clayton County, Georgia, contended that Bostock’s firing had nothing to do with that.

The cases are Bostock v. Clayton County; Altitude Express Inc. v. Zarda and R.G. and G.R. Harris Funeral Homes v. EEOC.

 



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