The US Supreme Court heard oral arguments Tuesday in two landmark cases concerning LGBTQ+ employment rights.
The court first heard oral argument in Bostock v. Clayton County, Georgia. This case was consolidated for oral argument with a similar case, Altitude Express Inc. v. Zarda. Both cases involved a gay male plaintiff who alleged that he was fired on the basis of sexual orientation in violation of Title VII of the Civil Rights Act. Specifically, the plaintiffs argued that “because of … sex” in the Civil Rights Act implies coverage of sexual orientation.
The court heard first from Bostock’s counsel who argued that treating a man who wishes to date men differently than a woman who wishes to date men is inherently sex discrimination. The justices questioned repeatedly whether they should get involved by extending the Civil Rights Act where many states have addressed this discrimination in state legislatures rather than the courts and where Congress has had numerous opportunities to intervene and chosen not to act, most recently in the Equality Act which passed the House, but has yet to be heard in the Senate. The court also signaled to the second case by asking how this would affect usage of bathrooms by transgender individuals. The court then challenged the employer by analogizing firing a gay man to firing a man involved in an interracial or inter-religion marriage.
The court then heard oral argument in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. This case centered on transgender woman, Aimee Stephens, who alleges that she was fired from the funeral home that had employed her for six years after coming out as a trans woman to her boss. This case asked whether Title VII prohibits discrimination against transgender people either inherently as being transgender or under the sex stereotyping decision in the earlier Price Waterhouse v. Hopkins case.
The respondent argued that the discrimination occurring here was based on sex stereotyping of an individual based on the sex assigned at birth. The court likewise challenged this respondent on how this would affect a future case on transgender usage of single-sex bathrooms, which several justices asserted would quickly follow this case. Justice Neil Gorsuch also questioned whether the court should exercise restraint in favor of the potential for massive upheaval, but the respondent noted that federal courts have recognized discrimination against transgender people as sex discrimination for 20 years with no major upheaval. The petitioner (the funeral home) argued that if the court ruled in favor of Stephens, bona fide occupational qualifications, which allow limited Title VII discrimination, would become per se sex discrimination, but the court challenged this view and argued that those qualifications would likely still remain.