The LGBTQ-Rights Movement Is Changing, and So Is the Supreme Court
The Supreme Court that will hear LGBTQ discrimination cases this week is radically different from the Court that legalized same-sex marriage four years ago.
A skydiving instructor in New York, a funeral-home director in Michigan, a child-welfare advocate in Georgia: Donald Zarda, Aimee Stephens, and Gerald Lynn Bostock are three people who seemingly have little in common, save for one extraordinary fact. Each claims to have been fired because they are gay or transgender, and all three will argue their cases before the U.S. Supreme Court this week.
The Court will decide whether existing federal civil-rights law protects millions of LGBTQ people from discrimination in the workplace, potentially clearing the way for new challenges across the legal system. But more important, the Court’s ruling will be a powerful symbol of the status of LGBTQ rights in America today. Faced with the legal mess America left behind when it moved on from its gay-rights moment following the legalization of same-sex marriage in Obergefell v. Hodges in 2015, the justices will decide whether the law actually reflects a culture that is radically more accepting than it was even a few years ago.
All three of the alleged wrongful-termination cases hinge on one word: sex. Under Title VII of the Civil Rights Act of 1964, employers cannot fire, refuse to hire, or otherwise penalize people because of their sex. (The law also protects employees from discrimination based on other characteristics, including race, color, religion, and national origin.) When the statute was originally passed more than half a century ago, “clearly there was no intent to cover sexual orientation or transgender [identity],” Michael C. Harper, a law professor at Boston University, told me. At the time, sodomy was a felony offense in the majority of states. Most members of Congress had likely never heard of the concept of fluid gender identity. Even today’s broadly accepted definitions of sex and gender were different: LGBTQ advocates differentiate between people’s biological makeup, or sex, and the way they express themselves, or gender. Fifty years ago, that distinction would not have been intuitive. “They were trying to say that you can’t have ‘women’s jobs’ and ‘men’s jobs’ in a very simple way,” Richard Epstein, a law professor at New York University, told me.
And yet, the Court has long ruled that sex discrimination includes sex stereotyping, or generalizations about how a person should act or dress based on societal norms for men and women. In 1989, this was the basis of a major victory for a woman named Ann Hopkins, who sued her employer, the accounting firm then known as Price Waterhouse, for telling her she needed to wear makeup and otherwise play up her feminine charms to get promoted to partner. Over the past 30 years, LGBTQ advocates have argued that sex stereotyping is also what drives employers to discriminate against people who are lesbian, gay, bisexual, and transgender, believing LGBTQ people fail to meet society’s standards for how men and women should act.
This issue was essentially shoved onto the Supreme Court’s doorstep. Lawsuits involving alleged LGBTQ discrimination have proliferated in recent years, and the circuit courts of appeal don’t agree on how to interpret the meaning of sex and the scope of Title VII. Many Supreme Court watchers have forecast that the justices will vote predictably along conservative-liberal lines, finding against the LGBTQ petitioners and respondents. Conservative legal advocates have advanced a range of arguments for why LGBTQ advocates should lose these cases: Some do not think Title VII actually says anything about LGBTQ identity. Others believe sexuality and gender identity should not be specially protected categories in civil-rights law, because that would interfere with employers’ hiring decisions and conduct codes. A small minority argues that civil-rights statutes are poor tools for mediating conflicts in general. “If you’re serious about trying to keep good workplace relationships, the last thing you want is to have a series of confrontations with ACLU types and lawyers pushing on both sides,” said Epstein. “I regard this as an absolute catastrophe for the way in which you maintain worker relations.”
But Katie Eyer, a law professor at Rutgers University, doesn’t think the Supreme Court’s decision in these cases will necessarily follow clear ideological lines. “I really do think this is a case in which people’s intuitions” about the justices’ ideology “are butting up against the methodological commitments of those same justices,” she told me.
The possibility for a surprise outcome, Eyer said, lies in the influence of textualism, the legal theory that guides certain conservative justices. While some scholars, such as Epstein, argue that Title VII should not cover LGBTQ people because Congress never meant for it to do so, “the basic premise of textualism is that we have to have our legal decisions controlled by the words that Congress used rather than any sort of subjective sense of what Congress intended,” Eyer said. She believes the meaning of sex plainly includes expressions of gender and sexuality, and that at least one conservative justice might agree. As evidence, she cited the Court’s unanimous 1998 decision in Oncale v. Sundowner Offshore Services, Inc., in favor of a man, Joseph Oncale, who was sexually harassed by other men who worked with him on an oil rig in the Gulf of Mexico. The author of that decision was none other than the Court’s foremost champion of textualism, Antonin Scalia, who was replaced by an ardent admirer of his and who is also a committed textualist: Neil Gorsuch.
If Eyer is correct and these Title VII cases scramble the Court’s typical left-right alliances, the outcome for LGBTQ rights could still end up mixed. Today, the Court is scheduled to hear oral arguments, but it purposefully separated the cases about sexual orientation, Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, from the case about transgender identity, R. G. and G. R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission and Aimee Stephens. Some legal scholars, such as Harper, believe Stephens’s case on sex discrimination is stronger; transgender people more clearly challenge social stereotypes about how men and women should express their gender. “It’s quite possible the Court could split in different ways in the two cases—and particularly that there could be coverage for transgender [identity], but not sexual orientation,” he said.
No matter what the Court decides, these cases will likely prompt a renewed push for federal legislation that clearly spells out Congress’s position on LGBTQ discrimination. Versions of this kind of bill have bounced around Congress for decades, but have always failed to pass, which Harper has called “shocking and appalling.” The latest iteration, called the Equality Act, easily passed in the House of Representatives this spring, but was essentially dead on arrival in the Senate. If the Supreme Court rules that Title VII does not currently bar employment discrimination based on sexual orientation and gender identity, Congress will be LGBTQ advocates’ last hope for protections.
On the other hand, if the Supreme Court rules in favor of the LGBTQ-rights argument, conservatives will likely race to protect religious institutions that fear they will be forced to comply with hiring standards that violate their teachings on gender and sexuality. Many LGBTQ advocates want to see their rights protected with explicit legislation, no matter what: It would send a “moral message,” Eyer said. “There is value to having Congress enact a law that says, explicitly, ‘This is a form of discrimination that we value—quite apart from sex discrimination—that we think should not exist in the workplace.’”
Ultimately, these cases are most significant because of their moral symbolism: While relatively few people end up suing their employers in federal court, laws help set norms about who is valued and protected in the United States. “Nobody wants the lawsuit,” Eyer said. “What they want is not to have experienced discrimination or harassment to begin with.”
Just a few years ago, a Supreme Court with a very different ideological makeup handed down a landmark ruling in Obergefell, establishing the right for all Americans to marry. That decision left many legal issues unresolved, however, including questions about LGBTQ discrimination. As it stands now, the Court may not be inclined to continue on its recent path of affirming LGBTQ rights. Whatever it decides, however, America has fundamentally changed. The judgment of nine Supreme Court justices matters. But LGBTQ Americans are working toward something larger: acceptance.