Commentary

Will the conservative majority Supreme Court abandon Anthony Kennedy’s support for equality?

supreme court lgbt rights
An LGBTQ activist waves a rainbow flag on the steps of the U.S. Supreme Court.Photo: Ted Eytan via Flickr

The Supreme Court is set to hear arguments this week on whether the 55-year-old federal civil rights law extends job protections to LGBTQ workers nationwide.

Percolating in lower courts for the past decade, the arguments will reach the high court in two cases involving gay men fired after their sexual orientation was discovered and a transgender woman fired after she related her plan to report for work in women’s clothes.

Related: Here’s how one man plans to win nondiscrimination protections for LGBTQ people nationwide

Lawyers for the plaintiffs and for LGBTQ and civil rights groups are arguing that the provision in Title VII in the Civil Rights Act of 1964 prohibiting discrimination “because of sex” necessarily applies as well to discrimination on the basis of sexual orientation or gender identity.

It is an open question whether Roberts Court conservatives who take a strict textualist approach to statutory construction will agree. But the Trump administration is siding with the employers in the three cases by arguing that Congress did not intend to protect LGBTQ workers in 1964.

Yale law professor William Eskridge calls the cases “textualism’s moment of truth,” but confesses uncertainty about the eventual decision. “There may be four or even five Roberts Court judges who will say we’re going to leave the LGBTQ advocates to the legislative process,” he says.

The cases are the first to be argued before the Court since Justice Brett Kavanaugh’s appointment in 2018 to succeed Justice Anthony M. Kennedy, who wrote and provided critical votes in three closely divided landmark gay-rights decisions, including the 2015 marriage equality ruling, Obergefell v. Hodges.

The two sexual orientation cases – Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda – will be argued together at 10 AM on Tuesday (Oct. 8). They will be followed by the transgender case, R.G. and G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, at 11 AM.

Gerald Bostock had been employed as a social worker for the Clayton County juvenile court and David Zarda as a skydiving instructor for the New York-based Altitude Express without a record of the complaint until after they were outed through inadvertent circumstances.

Bostock was fired in 2013 after he was listed in a newspaper article as a player in the gay softball league. Zarda was fired in 2010 after he answered a female student’s concern about skydiving in tandem by reassuring her that he was “100 percent gay.”

Bostock and Zarda sued their former employers under Title VII in federal district courts. Zarda died in a base-jumping accident in 2014, but his mother is continuing to pursue his claim, which the federal appeals court in New York cleared for trial. Bostock’s suit was dismissed by the district court and that decision was affirmed by the federal appeals court in Atlanta.

Aimee Stephens had worked for the Detroit-area funeral home for six years before telling her boss in 2013 that she is a woman. She complained to the EEOC, which sued on her behalf in federal district court. The federal appeals court in Chicago cleared the case for trial.

Attorneys for the employers and for conservative legal groups chide LGBTQ groups for supporting the Title VII claims after lobbying Congress for 40 years to pass the Employment Nondiscrimination Act (ENDA) to extend workplace rights to LGBTQ workers.

“If the statute already means what they say it means, why did they spend 40 years trying to amend it?” asks John Eastman, who filed a friend of the court brief siding with the employers on behalf of Chapman Law School’s Center for Constitutional Jurisprudence.

Eskridge denies any inconsistency in the LGBTQ groups’ strategy. “LGBTQ groups believe that sexual orientation and gender identity discrimination are impermissible,” he explains, “and they believe they are sex-related.”

The Supreme Court’s decision in the three cases is expected late in the term even though they are being argued in the first week of the new term. Currently, 21 states have laws protecting LGBTQ workers against discrimination. A Supreme Court ruling in the plaintiffs’ favor would give new rights to LGBTQ workers in the other states and provide alternative remedies to LGBTQ workers already covered by state laws.

Kenneth Jost is author of the annual series Supreme Court Yearbook and the legal affairs blog Jost on Justice.

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