It’s sure to be one of the new docket’s most controversial topics, raising the profiles of the Supreme Court and gay rights as Democrats challenge President Trump for the White House.
The cases involve a transgender funeral home director who won her case after being terminated; a gay skydiving instructor who successfully challenged his firing; and a social worker who was unable to convince a court that he was unlawfully dismissed because of his sexual orientation.
All share a common question: 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.
They will be the Supreme Court’s first major gay rights cases without Justice Anthony M. Kennedy, who was the deciding vote and wrote the majority opinions in all of the landmark victories for gay rights, including the right to marriage in 2015’s Obergefell v. Hodges.
Kennedy’s replacement is Justice Brett M. Kavanaugh, a Trump nominee who, generally, is thought to be more conservative than Kennedy but whose judicial record on gay rights is undeveloped.
The Trump administration is likely to side with employers in the case, having previously disagreed with the Obama administration’s position that the law prohibits discrimination against gay and transgender workers.
LBGT advocates say polls show Americans are surprised to learn that employment protection is not among the rights won by gay and transgender Americans, especially after the victory on same-sex marriage.
But only 22 states and the District of Columbia have laws expressly providing protection, according to the American Civil Liberties Union. About half of gay Americans live in those states, the organization said.
Opponents of court-mandated protections said such decisions should be made by elected officials and that Congress did not have 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 appeals courts have said the protection in the law is broad.
For instance, 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 him or her for being transgender.
“Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex,” the court ruled.
Overturning such rulings “would be disastrous, relegating LGBTQ people around the country to a second-class citizen status,” said James Esseks, director of the ACLU’s LGBT and 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 6th Circuit 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,” 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,” Bursch said.
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, which will be argued together.
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 a 2014 base-jumping accident, and his case was pursued 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 last year.
“I couldn’t believe you could be fired for being gay,” Melissa Zarda, Donald Zarda’s sister, said in a telephone conference call. “I thought this has to be against the law, and it is against the law.”
The U.S. Court of Appeals for the 11th Circuit in 2018 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, Ga., said that Bostock’s firing had nothing to do with his sexual orientation.
The cases are Bostock v. Clayton County, Ga.; Altitude Express Inc. v. Zarda, and R.G. and G.R. Harris Funeral Homes Inc. v. EEOC.