Key terms: equal protection, supreme court, ideology, social policy, writ of certiorari
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The US Supreme Court on Monday agreed to take a trio of cases that will, collectively, help decide the future of gay and transgender rights in America.
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.
