Three instances of LGBTQ workplace firings were center stage on Tuesday, as lawyers on both sides of the aisle contended with fanciful comparisons seeking to examine how gay and transgender people should be viewed by the courts, and whether federal civil rights protections based on sex should encompass LGBTQ identity.
Pamela Karlan, a lawyer for the gay employees, raised the prospect of having to argue her case in a Hooters outfit when considering gender-specific workplace attire. And Associate Justice Samuel Alito brought up a hypothetical gender-unknown employee which Karlan compared to Saturday Night Live’s Pat.
While Tuesday’s arguments strayed into the imaginative, and occasionally absurd, the stakes of a potentially precedent-setting decision were eminently clear for advocates of LGBTQ rights.
“No one should be denied a job or fired simply because of who they are or whom they love,” Alphonso David, president of the Human Rights Campaign, said in a statement. “This decision will have very real consequences for millions of LGBTQ people across the country.”
Though the thought of protecting LGBTQ employees from the biases of their employers was not on the minds of federal lawmakers when Congress passed the Civil Rights Act in 1964, Gerald Bostock and Aimee Stephens, a gay man and trans woman at the heart of the Supreme Court cases, are hoping that the court will formally recognize the law’s LGBTQ protections, just as it has expanded the scope of the law to other classes of people in the past.
Title VII of the Civil Rights Act prohibits discrimination because of sex. This law was of no use to Bostock when he was fired from his government job in June 2013 after he conducted outreach on behalf of a gay softball league. Karlan, a Stanford Law School professor representing Bostock and the estate of Donald Zarda, a now-deceased man whose sexual orientation became an issue with his employer before his own firing, put the conflict in stark terms on Tuesday.
“When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII,” she said. “The employer has… discriminated against the man because he treats that man worse than women who want to do the same thing.”
The Trump administration did not hesitate to weigh in on the proceedings, and filed briefs in support of the employers in both the anti-gay discrimination cases (which were consolidated) and the anti-trans case.
In a seminal decision known as Price Waterhouse v. Hopkins, the court has already ruled that Title VII bars discrimination based on stereotypes around one’s sex, including how “butch” or “femme” employees act. If the court were to uphold discrimination based on sexual orientation or gender identity, it could introduce a new conundrum that the Price Waterhouse case had previously resolved: Is my employer firing me for my effeminate behavior because he doesn’t think that’s how men should act, or because doesn’t think that’s how gay people should act?
Under an adverse ruling, such questions could become commonplace issues for gay and transgender workers in about half of the states which don’t offer explicit LGBTQ protections.
Jeffrey Harris, arguing for the employers in the gay discrimination cases, conceded that “there will be tough cases at the margins” trying to sort through the dilemma of mixed motive firings.
Supporters of the employers are generally relying on the uncontested notion that Congress never intended to protect LGBTQ employees, regardless of how the statutes can be interpreted.
On the other hand, a plain, textual meaning approach to reading the law represents something of an unusual reversal for the justices. Traditionally, the more commonly right-leaning justices favor the plain meaning of the text over congressional intent, whereas the more left-leaning justices use a more holistic approach.
However, in these cases, the plain meaning of the text may be the saving grace for fired LGBTQ workers, who are relying upon evolving understandings of the law and not Congress’ narrow intent when passing it over a half-century ago.
“That idea, if the language of the statute is clear, we don’t need to get into this question about whether or not lawmakers back in 1964 were thinking about gay people,” Chris Geidner, senior advisor for law policy at The Justice Collaborative, told Newsweek. “Lawmakers back then weren’t even thinking about gender stereotyping.”
Harris compared firing gay workers to male and female employees using restrooms intended for the opposite sex. Even though those workers could be penalized for a violation incurred because of their own sex, male and female violators would be treated accordingly, and no objections could be raised.
Similarly, the Justice Department has argued that employers who have blanket anti-LGBTQ policies would treat gay men and women comparably, meaning that “discrimination” in the meaning of disparate treatment would not be taking place.
However, Suzanne Goldberg, director of the Center for Gender and Sexuality Law at Columbia University, did not think this idea that doubling down on discrimination would ultimately prove to be a compelling argument.
“Doubling the discrimination does not make the first firing okay,” Goldberg told Newsweek. “The law does not and should not work that way.”
In the case of Stephens, who was fired after coming out as a trans woman, Justice Stephen Breyer told John Bursch, the lawyer arguing on behalf of her former employer, that it would be difficult to countenance a “parade of horribles” argument. Bursch had warned the justices of tropes commonly put forth when entertaining arguments against transgender access to public facilities.
He invoked the forced sharing of restrooms, showers and locker room facilities, presenting an ominous portrait where “a man who identified as a woman” would be able to serve “as a counselor to women who have been raped, trafficked and abused.”
Goldberg worried that if the justices find these arguments compelling, civil rights law protecting men and women of all stripes might begin to see gradual rollbacks in the courts, beyond the explicit scope of LGBTQ protections.
“I think that there is that risk, and that is very troubling,” she said. “If the Supreme Court weakens sex discrimination law here, that could be harmful to all employees.”
