A seemingly divided Supreme Court struggled Tuesday over whether a landmark civil rights law protects LGBT people from discrimination in employment, with one conservative justice wondering if the court should take heed of “massive social upheaval” that could follow a ruling in their favor.
With the court’s four liberal justices likely to side with workers who were fired because of their sexual orientation or transgender status, the question in two highly anticipated cases that filled the courtroom was whether one of the court’s conservatives might join them.
Two hours of lively arguments touched on sex-specific bathrooms, locker rooms and dress codes, and even a reference to the androgynous character known simply as Pat on Saturday Night Live in the early 1990s.
A key provision of the Civil Rights Act of 1964 known as Title 7 bars job discrimination because of sex, among other reasons. In recent years, some courts have read that language to include discrimination against LGBT people as a subset of sex discrimination.
Justice Neil Gorsuch, President Donald Trump’s first Supreme Court appointee, said there are strong arguments favoring the LGBT workers. But Gorsuch suggested that maybe Congress, not the courts, should change the law because of the upheaval that could ensue. “It’s a question of judicial modesty,” Gorsuch said.
David Cole, the American Civil Liberties Union lawyer representing fired transgender funeral home director Aimee Stephens, said the situation at the court itself showed such concerns were overblown.
“There are transgender male lawyers in this courtroom following the male dress code and going to the men’s room and the court’s dress code and sex-segregated restrooms have not fallen,” Cole said.
Two other conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh, did not squarely indicate their views, although Roberts questioned how employers with religious objections to hiring LGBT people might be affected by the outcome.
The first of two cases involved a skydiving instructor and a county government worker in Georgia who were fired for being gay. The second case involves transgender people, and the audience in the courtroom included Stephens, transgender actor Laverne Cox and some people who had waited in line since the weekend for Tuesday’s arguments.
The Trump administration and lawyers for the employers hit hard on the changes that might be required in bathrooms, locker rooms, women’s shelters and school sports teams if the court were to rule that the Civil Rights Act of 1964 covers LGBT people. Lawmakers, not unelected judges, should change the law, they argued.
“Sex means whether you’re male or female, not whether you’re gay or straight,” Noel Francisco, Trump’s top Supreme Court lawyer said.
Justice Samuel Alito, a conservative, seemed to agree with that argument, saying Congress in 1964 did not envision covering sexual orientation or gender identity.
“You’re trying to change the meaning of ‘sex,'” Alito said. Justice Clarence Thomas, who returned to the bench Tuesday after staying home sick the day before, said nothing, as is his custom.
Alito pressed Pamela Karlan, the Stanford University law professor representing the gay employees, about whether an employer who refused to hire a qualified candidate who was gay without knowing the candidate’s gender was guilty of sex discrimination.
“So this is Saturday Night Live Pat, as an example, right?” Karlan said.
Alito replied, “Well, I’m not familiar with that.”
Karlan obliged. “You can never tell whether Pat is a man or a woman,” she explained.
Karlan said repeatedly that such a case is merely hypothetical, but eventually conceded it would not qualify as sex discrimination.
If the votes of some conservative justices seemed in doubt, the liberals’ views were clear.
“And we can’t deny that homosexuals are being fired merely for being who they are,” Justice Sonia Sotomayor said. “At what point do we say we have to step in?”
Justice Ruth Bader Ginsburg pointed out that the term sexual harassment was unknown in 1964, but now is considered sex discrimination.
Justice Elena Kagan suggested sexual orientation is a clear subset of sex discrimination, saying that a man who loves other men cannot be treated differently by an employer than a woman who loves men.
The cases are the court’s first on LGBT rights since Justice Anthony Kennedy’s retirement and replacement by Kavanaugh. Kennedy was a voice for gay rights and the author of the landmark ruling in 2015 that made same-sex marriage legal throughout the United States. Kavanaugh generally is regarded as more conservative.
A decision is expected by early summer 2020, amid the presidential election campaign.
A ruling for employees who were fired because of their sexual orientation or gender identity would have a big impact for the estimated 8.1 million LGBT workers across the country because most states don’t protect them from workplace discrimination. An estimated 11.3 million LGBT people live in the U.S., according to the Williams Institute at the UCLA law school.
The Trump administration has changed course from the Obama administration and now supports the employers in arguing that the civil rights law’s Title 7 does not prohibit discrimination because of sexual orientation or transgender status.
During the Obama years, the federal Equal Employment Opportunity Commission had changed its longstanding interpretation of civil rights law to include discrimination against LGBT people. The law prohibits discrimination because of sex, but has no specific protection for sexual orientation or gender identity.
The Trump administration and the employers say Congress could easily settle the matter by amending Title 7 to include LGBT people. Legislation to that effect is pending in Congress, but is not likely to pass the Republican-controlled Senate.
But the workers contend, and the lower courts that have ruled for them have reasoned, that the law as it stands plainly covers sexual orientation and gender identity because discrimination against them is based on generalizations about sex that have nothing to do with their ability to do their jobs.
They also argue that they were fired for not conforming to sex stereotypes, a form of sex discrimination that the Supreme Court recognized 30 years ago.