On Tuesday, the Supreme Court will be hearing arguments from three LGBT workplace rights cases. These cases will be used to determine whether or not gay and/or transgender persons are protected under federal law from workplace discrimination.
Title VII of the Civil Right Act of 1964, the federal law protecting Americans from employment discrimination, prohibits workplace discrimination on the basis of “race, color, religion, sex, or national origin”, however, there is no mention of “sexual orientation”, “gender identity” or “gender expression” under this law, making LGBT persons potentially susceptible to work-related discrimination.
With current legislation, LGBT persons may be protected from employment discrimination under state law, however, 26 states and 3 US territories do not explicitly prohibit workplace discrimination on the basis of sexual orientation or gender identity/expression.
The three cases being looked at include two being argued together that hone in on workplace discrimination on the basis of sexual orientation. The cases include Altitude Express Inc. V. Zarda, in which Zarda was fired after telling a client he was gay, and Bostock V. Clayton County, in which Gerald Lynn Bostock argues he was fired because his employer learned he was gay. In the third case, RG & GR Harris Funeral Homes V. EEOC & Aimee Stephens, Stephens was terminated after her employers learned about her trans identity, raising the question of gender identity-based employment discrimination.
All three of these cases are asking for a reinterpretation of Title VII’s protection against “sex” discrimination, arguing that “sex” does not solely pertain to traditional sexism against women, but also encompasses different aspects of sex, including sexual orientation and gender identity/expression.
To experts such as Loyola Law School Professor Justin Levitt, it’s no question that Title VII’s definition of “sex” should be extended to include gender identity and sexual orientation.
“The standard is whether discrimination or harassment is related to sex, and if so, then the statute prohibits it, that’s what Justice Scalia said. I think it’s impossible to look at sexual harassment or sexual discrimination against people who are transgender because of their transgender status or people who are LGBTQ because of their sexual orientation and not realize that it’s related to sex,” Levitt said.
Changes have also been made to the Court since their last session. During the previous term, the left-wing had a 5-4 favor over their conservative counterparts, though since then, the numbers have flipped, with a 5-4 ratio favoring the right.
Returning conservative justices are predicted to vote against the addition of sexual orientation and gender identity being protected under Title VII, as Clarence Thomas, John Roberts, and Samuel Alito, the three conservative justices that served in 2015, voted against same-sex marriage in the Obergefell v. Hodges case. However, there is still hope amongst LGBT rights advocates that the outcome may be swayed by the two new conservative additions to the SCOTUS bench, particularly Justice Neil Gorsuch.
While Blaise Guerriero, an education graduate student and LGBT Resource Center student coordinator, isn’t “optimistic” about the upcoming decisions, he has faith in the unexpected support that the LGBT workforce may receive from Gorsuch.
“[Gorsuch] is a justice that looks at the law as very plain text and tries to take as little as possible from historical or modern [context] when interpreting the law and that can be both positive and negative, so, at this time, we [Guerriero and LGBT Resource Center staff members] are not too optimistic of the outcome, but hopeful that it [Gorsuch’s influence] could be something that could benefit us," Guerriero said.
Levitt said he believes that despite the conservative upper hand in the Court, it’s too hard to gauge the final decisions this early, especially in light of the newest additions to the Court.
“There are two justices who view themselves very much in Justice Scalia’s mold, who have already interpreted that in different ways in cases," Levitt said. “Both Justice Gorsuch and Justice Kavanaugh, in some ways, think of themselves as heirs to Justice Scalia’s legacy but respond differently, so I don’t think we know how the Court is likely to come out on this.”
Despite this hope for Gorsuch, it’s also important to remember that both Gorsuch and Kavanaugh were appointed by President Donald Trump, who’s administration has asked the Supreme Court to legalize employment discrimination against LGBT persons.
Given the impact that the Court’s hearings will undeniably have on LGBT rights, the USC LGBT community intends to create a supportive space for LGBT trojans, regardless of the outcome.
“At the moment, I cannot specifically [speak] of any actions we [the USC LGBT Resource Center] are going to be taking, we are going to be looking at resources. No matter what, whether it be voted down or for, we are going to be here for the LGBT community at USC,” Guerriero said.