The Supreme Court agreed Monday to hear three cases centered on whether federal law against discrimination in employment applies to sexual orientation and gender identity.
After hearing Bostock v. Clayton County, Georgia, the high court will decide whether the words “because of … sex,” found in Title VII of the Civil Rights Act of 1964, also forbid employment discrimination based on sexual orientation. The court consolidated Bostock with a similar case, Altitude Express Inc. v. Zarda.
The high court also will hear arguments in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission before ruling on whether Title VII as worded bars discrimination against transgender individuals.
Title VII specifically prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. It does not mention lesbian, gay, bisexual, or transgender Americans.
Lower federal courts came to conflicting decisions in Bostock, in which a child welfare worker said he was fired for being gay, and Zarda, in which a sky-diving instructor argued the same.
The Atlanta-based U.S. Court of Appeals for the 11th Circuit decided that Title VII doesn’t prohibit “discharge for homosexuality,” while the New York-based 2nd Circuit ruled for the instructor, saying that discrimination based on sexual orientation “is motivated, at least in part, by sex and is thus a subset of sex discrimination.”
In Harris Funeral Homes, a funeral director in Michigan was fired by the family-owned business after disclosing a transition from man to woman, which also involved dressing as a woman.
The Cincinnati-based Court of Appeals for the 6th Circuit sided with the employee, concluding: “Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.”
While many liberals see the Supreme Court as poised to restrict LGBT rights, conservatives argue that federal law doesn’t go as far as activists claim.
“There is a reason why, for the past 25 years, activists have tried to legislatively amend federal civil rights law to include ‘sexual orientation’ and ‘gender identity.’ That reason is simple: because it doesn’t include those categories,” Heritage Foundation scholar Ryan T. Anderson said, adding:
Courts should not do what activists have failed to do: Redefine ‘sex’ to mean ‘sexual orientation and gender identity.’ Doing so not only gets the law wrong, it also has serious negative consequences for women’s equality, safety, and privacy.
The Christian legal aid group Alliance Defending Freedom last fall petitioned the Supreme Court to hear the funeral home case, arguing that only Congress may rewrite a federal statute to allow a male employee who identifies as female to dress in women’s clothing in violation of a company dress code.
Although a federal district judge decided in the employer’s favor, on appeal the 6th Circuit sided with the Equal Employment Opportunity Commission in the agency’s lawsuit against Harris Funeral Homes, and Alliance Defending Freedom hopes to reverse that outcome at the high court.
“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,” John Bursch, the organization’s vice president of appellate advocacy, 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,” Bursch said.