SINCE 2015, same-sex couples have had a constitutional right to marry—yet Americans still enjoy no federal protection from workplace discrimination on the basis of their sexual orientation or transgender identity. In some two dozen states that do not have their own civil-rights umbrella for LGBT people, a gay employee can return to the office from his honeymoon and be fired. Transgender people, too, have no recourse in these states when their bosses fire or demote them for presenting themselves as their preferred gender.
In recent years, a push for greater equality has had some success at the Equal Employment Opportunity Commission and in several federal appeals courts which have pointed to protection against employment discrimination for LGBT in the Civil Rights Act of 1964. Meanwhile, the Trump administration and other courts are sticking to less expansive readings of that law. After months of discussion in private conference, on April 22nd the Supreme Court agreed to resolve the split. Late in 2019, the justices will take up gay rights for the first time since Justice Anthony Kennedy—author of the same-sex marriage decision and a trio of rulings forging a path to it—left the bench last June.Get our daily newsletter
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When the cases come up for argument, the main quandary will concern how to interpret three words Congress wrote over a half-century ago: “because of sex”. Title VII of the Civil Rights Act bars employers from discriminating against a worker “because of such individual’s race, colour, religion, sex, or national origin”. The question is whether skipping over a gay worker for a promotion or firing her on the basis of her sexual orientation amounts to discrimination “because of sex”—and whether similar treatment of trans people fits that bill.
Two of the cases—Altitude Express, Inc. v Zarda and Bostock v Clayton County, Georgia—involve gay men. Donald Zarda, a sky-diving instructor, and Gerald Bostock, a child-advocate employee, both say their sexual orientation (and in Mr Bostock’s case, his participation in a gay softball league) cost them their jobs. Mr Zarda died in a jumping accident in Switzerland before the litigation began but won a posthumous victory at the Second Circuit Court of Appeals in 2018. Judge Robert Katzmann found that discriminating on the basis of sexual orientation is “a subset of sex discrimination” since it is rooted in stereotypes about “how persons of a certain sex can or should be”. To sack “a man because he is attracted to men is a decision motivated, at least in part, by sex”. By contrast, the Eleventh Circuit Court of Appeals curtly rejected Mr Bostock’s claim, finding it foreclosed by a 1979 precedent which concluded that “[d]ischarge for homosexuality is not prohibited by Title VII”.
R.G. G.R. Harris Funeral Homes Inc. v Equal Employment Opportunity Commission, the third case, poses two slightly different questions about a transgender woman, Aimee Stephens, who lost her job at a funeral home when she told her boss she would no longer dress or present herself as Anthony. The Supreme Court will ask whether dismissing employees based on their “status as transgender” violates Title VII. It will also consider whether discriminating based on “sex stereotyping” violates the law. The issues are connected but analytically distinguishable: it could conceivably be acceptable to fire someone for being transgender as long as the reason is not linked to any particular behaviour or practice. The violation of Ms Stephens’s civil rights could be traced to the boss’s refusal to let her wear a dress to work and present herself as a woman, not to a general policy of disdain for transgender employees.
This distinction may sound fine, but the Sixth Circuit Court of Appeals based its ruling in favour of Ms Stephens squarely on the sex-stereotyping claim. In urging the justices not to hear the appeal, Ms Stephens argued the case was a poor vehicle for considering whether Title VII bars discrimination according to gender identity. The funeral home fired Ms Stephens’s, her lawyers wrote, “because her appearance and behaviour failed to conform to its sex stereotypes”. That type of discrimination “requires no determination of whether discrimination based on transgender status itself constitutes sex discrimination under Title VII”. Instead, it is universally acknowledged by all appeals courts to be barred by Price Waterhouse v Hopkins, a 1989 decision in which the Supreme Court read Title VII to preclude employers from disfavouring female workers based on “stereotypical notions about women’s proper deportment”.
The main strike against the plaintiffs in these three cases is obvious: none of the lawmakers in Congress in 1964 believed they were barring LGBT discrimination when they included “sex” among the prohibited bases of differential treatment in the workplace. But that is not the end of the story, even—perhaps especially—for conservative justices who purport to be textualists. More than two decades ago, Justice Antonin Scalia wrote a unanimous majority opinion in Oncale v Sundowner Offshore Services, Inc vindicating another claim that never crossed the minds of the mid-century legislators: a male employee’s right not to be harassed at work. Sexual harassment of men may not have been among the evils members of Congress thought they were combating when they drafted the Civil Rights Act, but the workplace harm is “reasonably comparable” to others Congress was thinking of. What should matter for a textualist are the words in the statute, not the motivations of its authors. “It is ultimately the provisions of our laws rather than the principal concerns of our legislators”, Mr Scalia wrote, “by which we are governed”.