The Supreme Court appeared to be closely divided after hearing two hours of oral argument this week in three LGBTQ federal law cases.  Two of those cases, No. 17-1618, Altitude Express Inc. v. Zarda and No. 17-1623, Bostock v. Clayton County, ask whether a worker can be fired based on their sexual orientation. The third, No. 18-107, R.G. & G.R. Harris Funeral Homes v. EEOC, asks whether a worker can be dismissed on account of their gender identity. Cockle printed the petitions in Bostock and Harris Funeral Homes.

The Court is set to determine whether Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on a person’s “sex,” also covers sexual orientation and transgender status. In a tense morning session Tuesday, the conservative Justices debated the meaning of “sex,” wondered whether this was an issue best left for Congress, and considered the possible impact a ruling in favor of LGBTQ employees would have on employers who manage businesses in accordance with their religious beliefs.

Meanwhile Justice Ginsburg, a senior member of the Court’s liberal wing, noted that judicial interpretation of Title VII terms has changed dramatically since the law’s inception.  She argued that discrimination based on sex stereotypes and same-sex harassment is protected today, something legislators didn’t originally comprehend in the mid-’60s.  Justice Sotomayor reminded the Solicitor General, who argued for the Trump administration and in favor of the employers, that the Civil Rights Act was intended to halt discrimination against these types of “unpopular groups.” “We can’t deny that homosexuals are being fired merely for being who they are,” Sotomayor said.

The LGBTQ questions mark an issue of first impression for President Trump’s two Supreme Court appointees.  Justice Kavanaugh is on record in Priests for Life v. HHS saying that an employee’s rights can be infringed in the name of their employer’s religious beliefs.  Kavanaugh replaced Justice Kennedy – the author of nearly every gay rights decision this century.

Justice Gorsuch seemed receptive to the plaintiffs’ arguments and appeared to be a possible swing vote.

He was the only conservative justice who engaged in good faith with the argument that discrimination against gay, bisexual, and transgender workers always takes sex into account. Yet Gorsuch appeared to be concerned about the potential “massive social upheaval” of a ruling that recognizes federal protections for LGBTQ workers.

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[Gorsuch] appeared to understand that these cases are a test of his consistency as a self-identified textualist. And he grappled, ambivalently, with the meaning of the statute throughout the morning. In one remarkable exchange with Jeffrey Harris, who argued for the employers, Gorsuch pointed out that Title VII doesn’t require sex to be the sole factor in discrimination; it can be a mere motivating factor, one among several. “Isn’t sex also in play here?” he asked Harris. “In what linguistic formulation would one say that sex, biological gender, has nothing to do” with anti-gay discrimination? “Wouldn’t the employer maybe say, ‘It’s because this person was a man who liked other men’? And isn’t that first part sex?”

Mark Joseph Stern, Only One Conservative Supreme Court Justice Is Taking LGBTQ Discrimination Seriously, (Oct. 8, 2019).

Thirty-one states have legislation which prohibits discrimination based on either sexual orientation or gender identity (some states protect only public employees while others protect both private and public employees).  These laws would remain in force should the Court’s conservative wing rule that Title VII does not apply to LGBTQ cases.  If the liberal bloc and one conservative Justice find that LGBTQ members are covered, then the protection would apply nationwide.

Expect a landmark decision near the end of June 2020 as the Court concludes its 2019 Term.