The Supreme Court this month will deliver a divisive ruling about whether or not Title VII of the Civil Rights Act protects gay and transgender people from employment discrimination.
The case, Harris Funeral Homes v. EEOC, is a consolidation of several cases involving gay and transgender people arguing that Title VII’s prohibition on discrimination on the basis of sex should be expanded. It was heard in October and was the court’s first on the issue since the retirement of Justice Anthony Kennedy, who delivered the decisive swing vote in the landmark 2015 Obergefell v. Hodges case, legalizing gay marriage.
No matter how the court rules, the decision is expected to heighten partisan disagreements. If the court does not extend protections, it will draw the ire of gay and transgender activists. If it rules for them, outcry is expected from religious groups worried that their ability to hire people who align with their beliefs will be restricted.
One of the attorneys who participated in the case, John Bursch, of Alliance Defending Freedom, a legal group that specializes in freedom of speech cases, said that if the Supreme Court rules in favor of protections, the effects will be wide-reaching, particularly for women.
“Redefining sex to mean gender identity creates chaos, is unfair to women and girls, and puts employers in difficult situations,” he said in a statement. “Title VII and other civil rights laws, like Title IX, are in place to protect equal opportunities for women; changing sex to mean gender identity undermines that.”
Justices Samuel Alito and Neil Gorsuch addressed the acrimonious climate on the decision during the case’s arguments, both agreeing that they expect their decisions to be met with public negativity. Alito said that it is unlikely that the public would accept a ruling from the court with such a wide reinterpretation of Title VII, adding that such a decision would make the court act “like a legislature.” Solicitor General Noel Francisco, representing the Trump administration in the case, made a similar argument.
Alito also said that it does not make sense to change the meaning of Title VII when it did not originally include explicit protections for gay people.
“You’re trying to change the meaning of what Congress understood sex to mean and what everybody understood,” he told Pamela Karlan, one of the attorneys defending a group of plaintiffs saying that they had been fired based on their sexuality.
Gorsuch expressed concerns that a decision in favor of protections would provoke “massive social upheaval” and speculated that a definitive decision should be made by Congress. Gorsuch added, however, that if “sex” is understood not just as a biological trait but also within the realm of gender identity, Title VII may actually protect gay and transgender people. It’s “really close, really close,” he said.
Justice Elena Kagan, using “sex” as defined according to a person’s gender identity, proposed solving the dispute with a “simple test.” According to the Civil Rights Act, no one should receive unequal treatment because of one’s sexuality, she said. So, in the case of one of the plaintiffs, a biological male identifying as a female who was fired for wearing women’s clothes to work in a funeral home, all that needs to be asked is, “Would the same thing have happened to you if you were of a different sex?”
If not, that’s discrimination, Kagan said.
Kagan’s test, however, requires an understanding of sexuality that classifies a person’s dating habits or gender fluidity as a defining trait of sexual identity, something which the court has never considered before.
Chief Justice John Roberts highlighted a concern similar to that of Alito and Gorsuch: A reinterpretation of Title VII could strip protections from religious people with objections to hiring gay and transgender people for jobs that their faiths prohibit such people from performing.
Justice Sonia Sotomayor also addressed the religious question, but argued, contra Roberts, that the bulk of discrimination against gay and transgender people is not motivated by religious reservations.
“We can’t deny that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs poorly, not because they can’t do whatever is required of a position,” she said, “but merely because they’re a suspect class to some people.”
After the Obergefell case, when many religious objectors voiced opposition to the court’s decision, alleging that the legalization of gay marriage would lead to more decisions that could imperil the rights of religious groups. Many of these issues arose again in the October arguments: questions about transgender bathrooms and the possibility of transgender women unfairly competing in female sports chief among them.
And those battles have not been limited to the Supreme Court. In the past year, many Democratic members of Congress have thrown their support behind the Equality Act, which would ensure similar protections for gay and transgender people. Some states have already passed their own versions of the Equality Act, most recently in Virginia, which banned discrimination in April, after an intense battle in the state legislature.
As with the case before the Supreme Court, the tensions in the Virginia fight arose from the fact that, by extending non-discrimination protections to gay and transgender people, religious liberty advocates said that the state placed churches and faith-based institutions at the risk of costly lawsuits. In an oft-repeated example, opponents of the legislation outlined a situation where a religious college could suffer a lawsuit for refusing to hire or house a gay religion teacher.
The Trump administration in May weighed in on the question of transgender women in school sports, saying that allowing them to compete against biological females violated Title IX, a 1972 federal law that prevents discrimination on the basis of sex in federally funded programs. The intervention, which addressed a case in Connecticut, was made by the Department of Education’s Office for Civil Rights.