Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on sex. Over the past decade, the question for employers and the courts has been whether those protections apply to gay, bisexual, or transgender employees. Different courts have come to different conclusions on the matter, and even the Equal Employment Opportunity (which was created by Title VII) has swapped sides, going from an emphatic "yes" under the Obama administration to an equally forceful "no" under President Donald Trump.
This split has forced the issue to the Supreme Court, who heard the first oral arguments in three related cases this week. How did they go?
The crux of the argument that Title VII's sex discrimination protections should already include LGBT workers (rather than, say, amending the statute or writing a new one) is that the discrimination taking place is based on sex, rather than sexual orientation, which the law does not explicitly cover. As Justice Elena Kagan pointed out during oral arguments, the test used to determine whether there is discrimination under Title VII is to ask whether the same thing would have happened if the employee were a different sex.
The cases before the court involve two male employees who were fired for being gay, and a transgender woman who was fired when she announced that she intended to live and work as a woman and would eventually have sex-reassignment surgery. Justice Kagan pointed out that, under the test she described, even though the men were ostensibly fired for their sexual orientation (being gay) the firings were based instead on sex: they were fired for being men who were attracted to other men rather than women who were attracted to men.
Justice Gorsuch put it bluntly, asking one of the employers' attorneys: "Let's do truth serum, okay? Wouldn't -- wouldn't the employer maybe say it's because this was -- this person was a man who liked other men? And isn't that first part sex?" And this is also where Justice Brett Kavanaugh asked his first and only question during the day's proceedings, asking whether employers' counsel was "drawing a distinction between the literal meaning of 'because of sex' and the ordinary meaning of 'because of sex.'" Counsel declined, and unfortunately Kavanaugh didn't expound on what he considered the difference.
In the transgender case, ACLU lawyers framed the issue in a similar light, arguing that the plaintiff was "fired her for identifying as a woman only because she was assigned a male sex at birth." If she had been assigned a female sex at birth, she would not have been fired for wanting to come to work dressed as a woman. But because she was assigned a male sex, lawyers argued, she was fired because she failed to conform to the sex stereotypes of her employer: "In doing so, [the employer] fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives. That is disparate treatment on the basis of sex."
Justices Gorsuch and Samuel Alito appeared worried about the effect a ruling in the transgender woman's favor would have. Gorsuch conceded it was a "close" call, but wondered whether the court should "take into consideration the massive social upheaval that would be entailed in such a decision." Alito pondered whether transgender women would have legitimate Title IX discrimination claims if they were not permitted to compete on college women's sports teams.
While attorneys tried to dismiss those concerns, these questions may provide insight into which way the justices are leaning. Given the conservative majority of the Court, the final decision is bound to be a tight vote.