The Supreme Court just took up a set of very big cases on LGBTQ rights
The Court agreed to hear three cases that have to do with whether existing federal bans on sex discrimination in the workplace also prohibit discrimination based on sexual orientation or gender identity. In the consolidated 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. And 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.
The Equal Employment Opportunity Commission (EEOC), a federal agency, has said that Title VII of the Civil Rights Act prohibits workplace discrimination based on sexual orientation and gender identity. The law doesn’t explicitly prohibit anti-gay or anti-trans discrimination, instead banning discrimination based on sex. But advocates argue that bans on sex discrimination should cover anti-gay and anti-trans discrimination as well, because discrimination based on sexual orientation and gender identity is fundamentally rooted in expectations about a person’s sex.
Some lower courts have agreed with the stance. In R.G. & G.R. Harris Funeral Homes v. EEOC, for instance, the Sixth Circuit Court of Appeals declared, “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 LGBTQ rights — like the 11th Circuit Court’s ruling that “discharge for homosexuality is not prohibited by Title VII.” President Donald Trump’s administration has also argued that Title VII doesn’t prohibit discrimination based on sexual orientation or gender identity.
The Supreme Court will now settle the question. It’s unclear how they’ll rule: The Court now has a likely conservative majority on these issues, since former Justice Anthony Kennedy — a strong ally of LGBTQ rights, despite his largely conservative record — retired in 2018. That could be bad news for LGBTQ rights.
Most states don’t explicitly ban anti-LGBTQ discrimination
The cases cover a big gap in LGBTQ rights in the US: Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, or public accommodations (like restaurants, hotels, and other places that serve the public).
So someone can be fired from a job, evicted from a home, or kicked out of a business just because an employer, landlord, or business owner doesn’t approve of the person’s sexual orientation or gender identity.
Similarly, federal and most states’ laws don’t explicitly ban anti-LGBTQ discrimination in schools.
But federal and state laws do ban discrimination based on race, religion, nationality, and sex in the workplace, schools, and other settings. This is what the Civil Rights Act and other federal and state civil rights laws that followed were about.
What activists want to do is expand the existing civil rights protections to also protect LGBTQ people.
Advocates argue federal civil rights laws should already protect LGBTQ people
Civil rights advocates claim, however, that federal law should already shield LGBTQ people from discrimination, because, they say, bans on sex discrimination also ban discrimination based on sexual orientation and gender identity.
According to advocates, discrimination against people based on their sexual orientation or gender identity is fundamentally rooted in prohibited sex-based expectations. For example, if someone discriminates against a gay man, that’s largely based on the expectation that a man should only love or have sex with a woman — a belief built on the idea of what a person of a certain sex should be like.
Similarly, if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify as a man — again, a belief built on the idea of what a person of a certain sex assigned at birth should be like.
On the other side, opponents argue that LGBTQ nondiscrimination protections aren’t included in existing federal civil rights laws, because the authors of federal civil rights laws never believed or intended that bans on sex discrimination also ban discrimination based on sexual orientation and gender identity.
LGBTQ advocates, citing legal precedent, say that what the original laws’ authors believe or intended is irrelevant. Joshua Block, an attorney with the ACLU LGBT and HIV Project, cited a 1998 Supreme Court case, Oncale v. Sundowner Offshore Services Inc., in which the Court unanimously agreed that bans on sex discrimination prohibit same-sex sexual harassment. Same-sex sexual harassment was not something the authors of federal civil rights laws considered, but it’s something, the Supreme Court said, that a plain reading of the law protects.
“Oncale says that’s irrelevant whether [Congress] contemplated it,” Block previously told me. “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.”
Even if courts conclude that statutory bans on sex discrimination do 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. That’s because federal civil rights laws don’t ban sex discrimination in public accommodations. That leaves a hole in nondiscrimination laws to be settled even if courts ultimately come down in favor of LGBTQ rights.