The U.S. Supreme Court on Tuesday wades into a major LGBT rights dispute over whether a landmark decades-old federal anti-discrimination law that prohibits employment discrimination on the basis of sex covers gay and transgender workers.
The justices, a day after kicking off their new nine-month term, are set to hear two hours of arguments in three related cases, with LGBT rights activists planning demonstrations outside the courthouse.
The Supreme Court delivered an important gay rights decision in 2015 legalizing same-sex marriage nationwide. Its dynamics on LGBT issues, however, changed following the 2018 retirement of Justice Anthony Kennedy, a conservative who backed gay rights in major cases and wrote the same-sex marriage ruling.
At issue is whether gay and transgender people are protected under Title VII of the Civil Rights Act of 1964, which forbids employers from discriminating against employees on the basis of sex as well as race, colour, national origin and religion.
The legal fight focuses on the definition of “sex” in Title VII. The plaintiffs, along with civil rights groups and many large companies, have argued that discriminating against gay and transgender workers is inherently based on their sex and consequently is illegal.
The court’s 5-4 conservative majority includes two justices appointed by President Donald Trump, whose administration has argued that Title VII does not cover sexual orientation or gender identity.
The arguments present the court with its first major test on gay and transgender rights since Trump appointed conservative Justice Brett Kavanaugh to replace Kennedy, with the four liberal justices sympathetic to LGBT rights. Kavanaugh, whose approach to gay rights is unclear, could provide a pivotal vote.
A ruling in favour of the plaintiffs would give gay and transgender workers greater protections, especially in the 28 U.S. states that do not already have comprehensive measures against employment discrimination. A ruling against the plaintiffs would mean gay and transgender people in those states would have few options to challenge workplace discrimination.
The court will hear two cases about gay people who have said they were fired due to their sexual orientation. One involves a former county child welfare services coordinator from Georgia named Gerald Bostock. The other involves a New York skydiving instructor named Donald Zarda. He died after the case began and the matter is being pursued by his estate.
The third case involves a Detroit funeral home’s bid to reverse a lower court ruling that it violated Title VII by firing a transgender funeral director named Aimee Stephens after Stephens revealed plans to transition from male to female.
Rulings in the cases are due by the end of June.
Trump, a Republican with vigorous support among evangelical Christian voters, has pursued policies taking aim at gay and transgender rights. His administration has supported the right of certain businesses to refuse to serve gay people on the basis of religious objections to gay marriage, restricted transgender service members in the military and rescinded protections on bathroom access for transgender students in public schools.
Trump’s Justice Department and the employers in the cases have argued that Congress did not intend for Title VII to cover gay and transgender people when it passed the law. Conservative religious groups and various Republican-led states back the administration.
Big business, typically eager to avoid liability in employment disputes, is backing the LGBT plaintiffs. More than 200 companies, including Amazon, Alphabet Inc’s Google and Bank of America Corp, joined a friend-of-the-court brief asking the justices to rule in favour of the plaintiffs.