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April 23, 2019 at 2:19 pm PDT | by Chris Johnson
Supreme Court agrees to hear whether federal law bars anti-LGBT discrimination

The Supreme Court has agreed to hear whether Title VII covers LGBT workers. (Blade file photo by Michael Key)

The U.S. Supreme Court has agreed hear cases seeking to determine once and for all if anti-LGBT discrimination in the workplace is prohibited under federal law.

In its orders list on Monday, the court announced it has granted certiorari in response to three separate petitions seeking clarification on whether Title VII of Civil Rights of 1964, which bars sex discrimination in the workplace, applies to cases of anti-LGBT discrimination.

Two of the petitions — the filings for the cases of Zarda v. Altitude Express and Bostock v. Clayton County — sought clarification on whether Title VII applies to cases of sexual-orientation discrimination. The other petition — a filing in the case of Harris Funeral Homes v. EEOC — seeks clarification on whether Title VII applies to anti-transgender discrimination.

Masen Davis, CEO of Freedom for All Americans, said in a statement the time has come “for the Supreme Court to cement into place our core American values of treating all people with respect and dignity and allowing everyone a fair shot no matter who they are.”

“Like other Americans, LGBTQ people want to make a living and provide for their families,” Davis said. “A win in these cases would improve the lives of millions of LGBTQ people and their families as well as send a message about the inherent importance of all of us being able to go to work, to live our everyday lives free from discrimination, and to have the means to take care of ourselves and our loved ones.”

Because the court decided to grant certiorari in April, the court will be unable to reach a conclusion by the time it adjourns for this term in June. The decision will have to wait until the next term, which means a ruling may not happen until June 2020.

The petition in the Harris case was filed in behalf of Harris Funeral Homes by the anti-LGBT legal firm Alliance Defending Freedom, which called on the Supreme Court to issue a more restrictive interpretation of Title VII that would omit transgender protections.

“Neither government agencies nor the courts have authority to rewrite federal law by replacing sex with gender identity — a change with widespread consequences for everyone,” ADF Vice President of Appellate Advocacy John Bursch said. “Businesses have the right to rely on what the law is — not what government agencies want it to be — when they create and enforce employment policies. The funeral home wants to serve families mourning the loss of a loved one, but the EEOC has elevated its political goals above the interests of the grieving people that the funeral home serves.”

In a conference call with reporters Monday, Bursch told the Washington Blade Alliance Defending Freedom doesn’t have a position on whether Title VII applies to cases of sexual-orientation discrimination.

“The issue in our case is about what Congress meant when it prohibited discrimination based on sex in 1964 and I don’t think any reasonable person would look at what was happening in 1964 and conclude that they intended to address gender identity in any way shape or form,” Bursch said. “I suspect that there are similar arguments that can be advanced with respect to sexual orientation, but they’re obviously distinct cases.”

LGBT people have asserted workplace discrimination on the basis of sexual orientation and gender identity constitutes sex discrimination and is unlawful under Title VII for decades.

With respect to sexual-orientation discrimination, courts have more recently adopted the idea Title VII applies to sex discrimination. The Second Circuit and Seventh Circuit have affirmed Title VII prohibits anti-gay discrimination, but the Eleventh Circuit recently rejected the idea.

Case law affirming Title VII covers anti-transgender discrimination is more developed. Over nearly two decades, eight federal appeals courts and 35 federal district courts have affirmed anti-transgender discrimination is sex discrimination and unlawful, according to the National Center for Transgender Equality.

James Esseks, director of the LGBT project at the American Civil Liberties Union, said in a conference call with reporters a ruling from Supreme Court against LGBT protections would conflict with the public acceptance for LGBT rights and the perception held by 70 percent of people anti-LGBT discrimination is already unlawful.

“There are cases going back to 1977 where courts have protected transgender workers or transgender individuals from sex discrimination,” Esseks said. “In fact, the public would be shocked if the Supreme Court ruled that it’s perfectly legal to fire someone just because she’s LGBTQ.”

The ACLU is co-counsel for the gay plaintiff in the Zarda case and the transgender plaintiff in the Harris case, but isn’t affiliated with the Bostock case.

Although the upcoming Supreme Court ruling on its face will determine whether anti-LGBT discrimination is prohibited under employment non-discrimination law, it will also impact other non-discrimination laws that bar discrimination on the basis of sex, such as the Fair Housing Act, the Affordable Care Act and Title IX of the Education Amendments of 1972.

Esseks pointed out LGBT people have taken advantage of laws barring sex discrimination in cases of discrimination not just in employment, but also education, housing and health care. Transgender people have won cases asserted denial of transition-related health care, including gender reassignment surgery, constitutes unlawful sex discrimination.

“This isn’t a question of is the Supreme Court going to for the first time say that LGBT people get to sue from discrimination,” Esseks said. “LGBT people are suing and have been suing for years and have been getting remedies for the discrimination where the courts say it is real, and so, the potential consequence here is widespread changes potential in the civil rights protections that LGBTQ people currently have.”

(No federal law bars discrimination on the basis of sex in public accommodations, so discriminating against LGBT people in public accommodations will be legal regardless of what the Supreme Court decides.)

The Supreme Court has agreed to hear the cases at the same time the Democratic-controlled House is moving forward with the Equality Act, legislation that would amend the Civil Rights Act of 1964 to prohibit explicitly anti-LGBT discrimination in employment, housing, credit, jury service, federally funded programs, education and public accommodations”

Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement the Supreme Court has “an opportunity to clarify this area of law to ensure protections for LGBTQ people in many important areas of life,” but legislative action is still necessary.

“The impact of this decision will have very real consequences for millions of LGBTQ people across the country,” Warbelow said. “Regardless of the eventual outcome, it’s critical that Congress pass the Equality Act to address the significant gaps in federal civil rights laws and improve protections for everyone.”

The petitions have been pending before the court for some time. The court grants certiorari the week after the U.S. Eighth Circuit Court of Appeals held arguments in the case of Horton v. Midwest Geriatric Management on whether Title VII covers sexual-orientation discrimination.

It remains to be seen what decision the Supreme Court will reach. The cases reach the Supreme Court after Trump has remade the bench with the appointments. of U.S. Associate Justices Neil Gorsuch and Brett Kavanaugh. LGBT groups, fearing the appointments would be hostile to LGBT rights, opposed the confirmation of both justices.

Esseks, nonetheless, told the Blade he’s “hopeful” the Supreme Court will reach a decision affirming LGBT protection under existing law.

“I think that the lower courts that have recognized that anti-LGBT discrimination is a form of sex discrimination have it right,” Esseks said. “I think the public has it right. The public already agrees that we are protected. And so, I think the court would be going out on a limb with the public and, I think, legal argument by ruling against us as opposed to ruling for us.”

Asked whether it helps and hurts to have the sexual orientation and gender identity issue decided at the same time, Esseks said “it’s fine” because “they’re all of a piece.”

“These are all just different forms of sex discrimination, and I think it’s important for the court and the country to get used to thinking about it through that lens because these are different kinds of sex discrimination,” Esseks said.

The Zarda case has a standing issue. Altitude Express, the company that allegedly fired Zarda for being gay, no longer exists, but another company bought it assets. The question is whether the new company assumes liability for the company it bought without having engaged in anti-gay discrimination itself.

Esseks said standing, however, won’t be an issue because the Supreme Court also granted review in the Bostock, which has no standing complications.

“The fact that the court has taken review in both Bostock and Zarda and consolidated them means that for better or worse the standing questions, I think, become irrelevant because even if there are standing issues in Zarda, Bostock will provide a vehicle for the court to reach the issue,” Esseks said.

The Trump administration has already asserted LGBT workers aren’t entitled to non-discrimination protections under Title VII. The U.S. Justice Department argued Title VII shouldn’t apply to cases of sexual-orientation discrimination before the U.S. Second Circuit Court of Appeals in the Zarda case and file a brief before the Supreme Court arguing the U.S. Sixth Circuit Court of Appeals wrongly decided Title VII applies to cases of anti-transgender discrimination in the Harris case.

But the U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal civil rights laws, has continued to argue Title VII applies to LGBT workers in the Trump administration. Last week, the EEOC sent a lawyer to participate in oral arguments in the Horton case before the Eighth Circuit to assert those protections.

Esseks said what role of the EEOC will take before the Supreme Court is an “interesting question” because the agency initially brought the case on behalf Aimee Stephens, the transgender plaintiff in the Harris case, and are “technically respondents,” but the Justice Department, which is charged with arguing on behalf of the U.S. government before the Supreme Court, has taken the opposite position.

“We are thinking through whether we’re going to ask for formal realignment to change the caption, but certainly I fully expect the government to be arguing against civil rights protections for LGBTQ people in both cases,” Esseks said.

Laura Durso, vice president of the LGBT research and communications Project at the Center for American Progress, said in a statement the Supreme Court should issue a ruling affirming non-discrimination for LGBT people.

“People should have the right to love who they love and be who they are without fear of losing their job,” Durso said. “Too many lesbian, gay, bisexual, and transgender people face bias in the workplace, making it harder to provide for themselves and their families. The Supreme Court should affirm the growing consensus of federal courts in recognizing the reality of this discrimination in order to ensure that LGBT employees are guaranteed the same protections afforded to other workers.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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