[UPDATE: Amy Howe summarizes the oral arguments heard today.]
The US Supreme Court will hear oral arguments today on three cases brought by people who claim that the discrimination that they suffered in employment was due to them being either gay or transgender and that this is a violation of Title VII, the federal law that protects people from employment discrimination. The catch is that this statute does not explicitly include sexual orientation or gender identity in its protected classes, listing only race, color, religion, sex and national origin. Thus people have to appeal to state laws and these vary across the country. It should come as no surprise that it is the traditionally Republican states who have not legislated any protections. If you happen to live in one of those states, you are out of luck.
This lawsuit seeks to change that by arguing that the term ‘sex’ in the federal law is inextricably linked to sexual orientation and gender identity, even though those three categories represent different elements of a person’s identity. David S. Cohen explains the argument.
To get more specific, there are three arguments the employees are going to be making to the Court. First, that discrimination based on sexual orientation treats people differently because of their sex because if, say, the fired gay men, who were attracted to men, were actually women, they would not have been fired for being attracted to men. Thus, Bob is fired because of his sex because he is attracted to Dan, whereas if Bob were Barbara, she wouldn’t. Second, that gay men and lesbians as well as trans people who are fired because of their identity are really being fired for failing to live up to gender stereotypes — for gay men and lesbians, that they should be attracted to, respectively, women and men (and not the other way around); for trans people, that they should live their lives in accordance with their gender assigned at birth. And third, for gay men and women, that they are being discriminated against because of the sex of the people they romantically and/or sexually associate.
Cohen says that much hinges on the outcome of this case because it directly affects pretty much all members of the LGBT community, more than those affected by the same-sex marriage case where about 10% of LGBT adults are now in a same-sex marriage.
A ruling for the employees will mean that LGBT people will be protected from discrimination at work and possibly even beyond. Many other laws protect against sex discrimination, such as in housing or education, and it would be an easy case to make to apply an employment ruling to these other contexts. A ruling against the employees could be disastrous, both in putting the Court’s stamp of approval on bigotry but also in possibly gutting various protections against sex discrimination.
Observers at the court will try to guess which way John Roberts, Clarence Thomas, and Samuel Alito (who all voted against same-sex marriage) and Neil Gorsuch and Brett Kavanaugh (who have not as yet ruled on any similar cases) will vote, though questions during oral arguments are not a very reliable indicator of intention to vote.