Monday, March 20, 2023

[Analysis] Conservative Justices Unlikely Swayed by Pro-LGBTQ Arguments at Supreme Court

This afternoon as I read through the transcripts of the arguments in these cases that were before the Supreme Court this morning, one thing played over and over in my mind: Where do we go from here?  I do not have an answer yet, but I know from reading through the transcripts that the conservative side of the court was unlikely swayed by the argument that attraction to the same-sex is a basis for sex discrimination under Title VII nor were swayed that transgender individuals are covered under sex discrimination.

Title VII of the 1964 Civil Rights Act prohibits employment discrimination on the basis of race, color, religion, sex, and national origin.  Under Title VII, an employer may not discriminate with regard to any term, condition, or privilege of employment.  The Equal Employment Opportunity Commission (EEOC) enforces Title VII.  Title VII covers employers with more than 15 employees, the federal government, employment agencies, and labor organizations.  No person employed by a company that is covered by Title VII can deny employment, treat an employee differently, and make employment decisions on the basis of stereotypes or assumptions related to any of the protected characteristics.  Currently, there is no national law that protects individuals from discrimination in employment on the basis of sexual orientation or gender identity, but the Equality Act was passed by the House of Representatives earlier this year and has been sitting in the Senate. The Court in the cases heard on October 8, 2019 will determine if discrimination of sex includes treating transgender and same-sex attraction is covered under “sex.”

The first case argued before the court was the combined case of Bostock vs. Clayton County, GA and Altitude Express, Inc. vs. the Estate of Donald Zarda.  Pamela Karlan gave the oral argument for Bostock and the Estate of Donald Zarda.  Ms. Karlan’s argument bothers me as a member of the LGBTQ community, but it is the correct legal argument in favor of same-sex attracted individuals to be protected from sex discrimination.  She asked the Justices if a man is attracted to a man and then that man is treated differently than a woman who is attracted to a man, does that mean he was treated differently on the basis of sex?  Also, a man who is attracted to a man who is adversely treated in employment is being treated adversely because of that man’s failure to conform to a particular expectation of how men should behave, in other words, men should be attracted to women, not men.  In the cases before the court, only men were discriminated against but Ms. Karlan mentioned that discrimination against men who fail to conform to the male stereotype and discrimination against women who fail to conform to the female stereotype are discriminated against on the basis of sex.  The reason this argument bothers me is that it presents same-sex attraction as abnormal.

The Justices asked questions relating to when does discrimination on the basis of sex change from innocuous to injurious.  Where do you draw the line and call something discriminatory?  Chief Justice Roberts brought up creating an exemption for religious organizations.  The opposing view was argued by Jeffrey Harris.  Mr. Harris argued that sexual orientation and sex are separate characteristics and discrimination on the basis of sexual orientation is not covered by Title VII.  He asked if members of one sex were being treated differently from the opposite sex and in this case, they were not.  Justice Kagan referred to the legal test set forth in 1978 in Manhart for discrimination under Title VII.  Would the same thing have happened to you if you were of a different sex and Kagan pointed out that in this case, the same thing would not have happened if they were of the opposite sex.  Justice Gorsuch surprisingly suggested that sexual orientation is in play due to it being a proximate cause of the discrimination.  Justice Sotomayor questioned Mr. Harris if homosexual orientation is highly correlated to stereotypes, how is that not discrimination because of sex.  Mr. Harris answered that sexual orientation was not what Congress ever intended to protect in the language of the 1964 Act.

Unfortunately, the United States argued that Congress did not prohibit discrimination on the basis of sexual orientation when it prohibited discrimination on the basis of sex.  General Francisco argued that the question of whether discrimination is based on sex is if there is different treatment of similarly situated men and women.  If so, then there is discrimination.  Justice Kagan reminded the Court that the statutory interpretation has been the text of a statute and not the legislative history and that the text appears to firmly back up Ms. Karlan’s argument.  If he had been a woman, he would not have been fired.  General Francisco did not agree that sex was a factor in these cases and that sex and sexual orientation are different traits.  As a result, Congress has not specifically protected sexual orientation from discrimination in employment.  

Overall, my impression is that this case will be a 5-4 decision in favor of Clayton County and Altitude Express, Inc.  I do not think that Roberts or Gorsuch will be swayed by the argument that the men in these cases were treated differently than that of a woman who is attracted to a man.  

The third case argued before the Court was Harris Funeral Homes vs. Equal Opportunity Commission.  This case considers whether transgender individuals are shielded from discrimination in employment on the basis of sex.  Aimee Stephens is a transgender woman who was fired from her position of six years because she told her boss she was going to live openly as a woman.  

David Cole argued for Ms. Stephens that Harris Funeral Homes fired her on the basis of sex for three reasons.  First, she did not conform to the owner’s explicitly stated stereotypes about how men and women should behave.  Second, Harris fired her because she was assigned a male sex at birth and she identifies as a woman.  Third, in the owner’s words, for changing her sex.  Chief Justice Roberts immediately brought up the bathroom and the difference between gender identity and biological sex and how one analyzes discrimination based on sex in this situation because it is based on biological sex or gender identity.  Unfortunately, the bathroom issue will not be resolved with this case and Ms. Stephens use of the women’s bathroom was used as a hypothetical in the reason why she was fired.  Mr. Cole stated that anybody can challenge a sex-specific rule and biological sex or identity plays no part in who can challenge those rules.  Asking a transgender individual to dress in a way or use a bathroom that is contrary to their gender identity imposes a significant harm and that harm is based on sex.  

This case is different than the first case as the government and Harris Funeral Homes conceded that transgender individuals are not excluded from the statute and can bring sex discrimination claims.  Ms. Stephens claim is that she was fired for failing to conform to the sex-based stereotypes of the sex she was assigned at birth.   Mr. Cole told the justices that he was not asking for any other meaning of sex than as sex assigned at birth.  But how can Ms. Stephens be fired for not being masculine enough, just as the Court ruled in PriceWaterhouse that Ann Hopkins was fired for not being feminine enough? 

John Bursch argued for Harris Funeral Homes.  Mr. Bursch stated that sex and transgender status are individual concepts and does not mean that employers have to treat men as women.  The funeral home considered that the sex-specific dress code impacts employees and clients and was valid and does not violate Title VII.  Title VII allows sex-based differentiation such as bathrooms and dress codes.  He also argued that since Congress has not included transgender to the classifications that are protected that there is no transgender status discrimination by comparing a transgender person with a non-transgender person.  Justice Gorsuch stated if sex is narrowly tailored it still includes transgender persons within the statute.  Justice Kagan asked if Ms. Stephens was being treated differently because of her sex and if Harris Funeral Homes could fire her for being transgender, regardless of the dress code.  Mr. Bursch replied that the Court allows a sex-specific dress code and acknowledges differences between men and women but that a transgender classification under sex is a change in the law and that sex alone is not a stereotype.  

General Francisco argued again for the EEOC.  He stated that this case is a close textual case for three reasons.  First, sex and gender identity are defined differently.  Second, the threshold question is whether you are treating two similarly situated persons differently because she is a woman or he is a man and taking adverse employment actions against them.  Third, who is similarly situated to a transgender woman, the cisgender woman or the cisgender man and does the transgender individual conform to the stereotypes of biological sex.  Justice Kagan brought up that independent traits such as transgender identity is a refusal to conform to traditional gender roles and stereotypes which is discrimination on sex.  Justice Breyer reminded the Court that the Civil Rights Act was passed and designed to include the people who had been truly discriminated against in our society and that the Court should interpret the statutes to include the LGBTQ community.  Justice Sotomayor agreed and said that the Civil Rights Act was created to ensure that people are treated equally, including homosexual and transgender individuals.  

My impression of this case is a bit hopeful.  I think Gorsuch is the swing vote.  I count Breyer, Ginsburg, Kagan, and Sotomayor in favor of Ms. Stephens with Alito, Kavanaugh, Roberts, and Thomas for the funeral home.  It appears that this case is a clearer argument that being discriminated against because an individual is transgender or gender non-conforming is discrimination based on sex.

In the end, I think that these cases will tell us a lot about where other cases regarding LGBTQ and women’s rights will go with this Court.  We have fought for equality before the law and made tremendous moves forward, from Roper and Lawrence to Windsor and Obergefell.  I have debated the possibility of both cases as a loss for our community. Each of these are motivating factors to encourage every one of us to help replace the Senate with equality-minded individuals and have the Equality Act passed and signed into law. 

About Rachel Anderson

Rachel Anderson, Esq. is an Attorney at Chesapeake Legal Group, PLLC and Board Member of HRBOR who specializes in estate planning and administration, business law, family law, and contracts.  Ms. Anderson represents clients throughout Hampton Roads and can be reached at or 757-410-7943.

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