The U.S. Supreme Court deliberated for two hours Oct. 8 on whether longstanding, non-discrimination federal workplace law provides protection based on “sexual orientation” or “gender identity,” and at least some justices appeared persuaded it does.
The high court heard oral arguments in two consolidated cases addressing “sexual orientation,” followed by arguments in an appeal regarding the “gender identity” issue. In the arguments, the high court was urged to rule that the classification “sex” in Title VII of the 1964 Civil Rights Act applies to those categories.
The Supreme Court’s decisions, which could have far-reaching effects, are expected to be issued before its adjournment next summer.
The Southern Baptist Ethics & Religious Liberty Commission (ERLC) signed onto friend-of-the-court briefs filed in August by the U.S. Conference of Catholic Bishops (USCCB) that contended “sex” in Title VII does not include either classification.
ERLC President Russell Moore told Baptist Press the arguments “present an opportunity for needed resolution over the definition of sex in federal law.”
“Title VII is important because it ensures legal protection for women,” Moore said in written comments. “But the misapplication of this law to mean what Congress did not write would punish any who dare disagree with the most radical aspects of the Sexual Revolution. We cannot understand equality on the basis of sex if we have ever-changing confusion on the meaning of sex and identity.
“My prayer is for a clear ruling that upholds human dignity in our law.”
With the cases, the high court has an opportunity to clarify a contentious sphere of law that sometimes involves the conscience rights of business owners, especially Christians, in conflict with the claims of their employees.
The debate has divided federal appeals courts and the two most recent presidential administrations.
Two appeals courts – the Second Circuit in New York City and the Sixth Circuit in Cincinnati – ruled in 2018 that gay and transgender individuals, respectively, are protected under the category of “sex” in federal employment law. The 11th Circuit in Atlanta, however, decided last year “sex” does not refer to “sexual orientation.”
Though “sex” was long interpreted to refer only to whether a person is biologically male or female, the Justice Department under President Obama determined it also encompassed people who identify as gay or transgender. President Trump’s Justice Department has returned to the previous interpretation.
U.S. Solicitor General Noel Francisco, arguing on behalf of the Department of Justice, told the court “sexual orientation” and “gender identity” are not covered by Title VII.
“Sex and sexual orientation are independent and distinct characteristics, and sexual orientation discrimination by itself does not constitute discrimination because of sex under Title VII,” he said regarding cases in which gays said they were fired because of their “sexual orientation.” “That’s just as true today as it was in 1964.”
More than 20 states have added “sexual orientation” to non-discrimination laws that already included protection based on “sex,” Francisco told the justices.
In contrast, Pamela Karlan, a Stanford Law School professor, gave a hypothetical of two employees in arguing for the inclusion of “sexual orientation” in “sex” protections. Two people come to work, “both of whom tell you they married their partner Bill last weekend – when you fire the male employee who married Bill and you give the female employee who married Bill a couple of days off so she can celebrate the joyous event, that’s discrimination because of sex,” she said.
While the high court’s liberal bloc seemed convinced by the proponents to interpret “sex” broadly, Associate Justice Samuel Alito expressed skepticism.
Congress “has been asked repeatedly in the years since 1964 to address this question,” Alito said. “Congress has declined or failed to act on these requests. And if the Court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature.
“You’re trying to change the meaning of what Congress understood sex to mean and what everybody understood sex to mean in 1964,” he told Kaplan.
David Cole, the ACLU’s national legal director, said a Michigan funeral home that fired a man who undertook a gender transition treated the employee “differently because of her sex assigned at birth. If she had a female sex assigned at birth, she would not be fired. Because she had a male sex assigned at birth, she is fired.
“She’s not seeking any special protection,” Cole said. “She is seeking, and all transgender people are seeking, the same protection that everybody else gets under the law.”
John Bursch, a vice president with Alliance Defending Freedom, told the justices in support of the funeral home’s owner, “Treating women and men equally does not mean employers have to treat men as women. That is because sex and transgender status are independent concepts. What Title VII says is that sex-based differentiation is not the same as sex discrimination.”
Jonathan Whitehead – a Southern Baptist lawyer in the Kansas City, Mo., area – was encouraged by the oral arguments. He filed a friend-of-the-court brief on behalf of 24 state organizations of the Family Policy Council in support of the Michigan funeral homes.
“This is not a case about firing an employee because he is gay or transgender, nor a case about bigotry or hate,” Whitehead said in a written statement after the oral arguments. “It is a case about the longstanding right of employers to apply a common sense dress code to both male and female employees.
“Americans and American businesses should be safe from lawsuits if they obey what the law says, and has always been interpreted to say.”
The “sexual orientation” cases involve employees in New York and Georgia who said they were fired because they are gay, while the “gender identity” case involves a male employee at a Michigan funeral home who was fired after he told the owner he identified as a female and planned to begin wearing women’s clothing.
Donald Zarda, who has since died, was a skydiving instructor in New York who filed suit after he was dismissed by Altitude Express Inc. The executors of his estate continued the suit, and the Second Circuit reversed a federal judge’s ruling against Zarda’s claim under Title VII.
The 11th Circuit upheld a federal court’s dismissal of a suit by Gerald Lynn Bostock, a child welfare services worker, against Clayton County in Georgia. A three-judge panel agreed with the lower court that Title VII does not pertain to “sexual orientation.”
In Michigan, the Equal Employment Opportunity Commission (EEOC) brought legal action against the R.G. & G.R. Harris Funeral Homes after owner Thomas Rost dismissed Anthony Stephens, who told Rost in 2013 he was transitioning to a woman, intended to dress accordingly and was changing his name to Aimee. Stephens had worked for Harris Funeral Homes for six years.
The cases are Altitude Express Inc. v. Zarda, Bostock v. Clayton County and Harris Funeral Homes v. EEOC.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)