Earlier this week, the Supreme Court heard oral arguments in three soon-to-be landmark cases concerning LGBTQ rights under Title VII: Bostock v. Clayton County (No. 17-1618); Altitude Express, Inc. v. Zarda (No. 17-1623); and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (18-107). Bostock and Zarda concern whether sexual orientation is protected under Title VII, while R.G. & G.R. Harris Funeral Homes questions whether Title VII protects transgender status in the workplace. Below are some of the highlights.
(A transcript of the sexual orientation oral argument is available here.)
Bostock and Zarda generally argued that firing a man for being attracted to men, while retaining a woman who is attracted to men, is discrimination on the basis of sex as encompassed by Title VII. The Court questioned what would happen if an employer terminated an employee for being homosexual without knowing the employee’s sex, and whether such a policy is nondiscriminatory because it applies equally to both sexes. Bostock and Zarda responded that this is the same as a policy that an employee will be fired for gender nonconforming behavior (which is prohibited by Title VII).
Bostock and Zarda also argued that once it is determined that sex discrimination has occurred because an employee was treated differently as a result of his sex (as in the underlying case) and because of a result of a sex-specific rule, the next inquiry should be to determine the extent of the harm imposed by the sex-specific rule. While there is no harm to a man or woman employee because of a sex-specific dress code or bathroom rule, the same cannot be said for a work policy that prohibits homosexuality. Justice Gorsuch quickly latched on and pointed out the difficulty that such a test poses in light of the issues presented by the transgender status case. In other words, a sex-specific bathroom or dress code rule may not harm a cisgender man or women, but the transgender community would argue that the same rule would present great harm to a transgender employee, whether male or female.
The Court probed the parties on the notions that Congress could not have imagined the definition of “sex” in Title VII extending to sexual orientation and transgender identity, respectively, when it passed the law in the 1960’s. The Justices questioned whether the parties were asking it to rewrite Title VII to include such protections and whether this usurps the role of the legislature. The employees’ response was that there was no need to “rewrite” Title VII and that, as counsel and Justice Ginsburg later pointed out, the language of Title VII has been applied to establish many forms of sex discrimination not in Congress’s mind when it passed Title VII. Specifically, sexual harassment and discrimination for one’s failure to conform to gender stereotypes are concepts that the Court has read into Title VII over time.
Counsel for the employers stressed the importance of recognizing sex and sexual orientation as concepts independent and distinct from one another and reminded the Court that Congress did not mean “sexual orientation” when it passed Title VII in 1964. The opposition further stressed that sex discrimination means discrimination on the basis of being male or female, not on the basis of being homosexual or heterosexual.
(A transcript of the transgender status argument is available here.)
Stephens took a similar approach to Bostock and Zarda by arguing that the Court need not “rewrite” Title VII to hold that the employment discrimination she faced was literally discrimination “because of … sex.” More specifically, had Stephens been assigned female at birth, she would not have been fired. But because she was assigned male at birth, she was fired. And this, she argued, is discrimination on the basis of biological sex. The Court overall seemed to have no problem accepting Stephens’s claim that the funeral home’s action against her was because of her biological sex (or, sex assigned at birth), which fit neatly into Title VII. Rather, the difficulty seemed to lie in whether the analysis should start at biological sex or at the sex with which a transgender individual identifies.
Counsel and the Court also discussed how Title VII permits employers to recognize differences between men and women (as opposed to other protected classes) and how this relates to the statutory bona fide occupational qualification (BFOQ) defense. Both suggested that a BFOQ could potentially resolve the “parade of horribles” arguments, which depict difficult to imagine results of a favorable holding towards transgender individuals.
Moreover, the Court seemed to accept that such “parade of horribles” arguments may also be squashed by the Bostock and Zarda’s test and the need to show some comparative harm as a result of the sex-specific discrimination. The Court suggested that balancing the need for a transgender person to use bathroom that corresponds with that individual’s gender identity, for example, with the fact that it makes cisgender people using the same bathroom uncomfortable, and that this is an “inevitable” question they would face if they find that transgender status discrimination is sex discrimination.
As to the question of whether Stephens was asking the Court to do Congress’s job, Stephens reiterated that she was not asking the Court to rewrite Title VII. Rather, she was asking the Court to hold that sex assigned at birth was at the basis of the discrimination in her case. When Justice Gorsuch pressed Stephens on whether the Court should consider the “massive social upheaval” that would follow a decision to define “sex” as protecting transgender people, Stephens replied there would be no “upheaval” because transgender people have existed and still follow sex-specific rules, such as bathroom rules, consistent with their gender identity. The employer argued in response that permitting the Court to read transgender status into Title VII, even if Congress would include the definition were they to pass Title VII no, would “deprive people of the ability to struggle with these issues democratically.”
Throughout both arguments, the parties opposing the notion that Title VII prohibits sexual orientation and transgender status discrimination stressed that “sex” is a distinct concept from “sexual orientation” and “transgender identity.” Overall, however, the Court appeared to have somewhat of a difficult time accepting that discrimination because of one’s sexual orientation and/or transgender identity does not implicate sex discrimination. The Justices seemed to grapple more with how the principles should and will apply in most cases, leading me to believe that the Court is likely to issue an opinion at least somewhat favorable to the LGBTQ community.