WASHINGTON – The Supreme Court on Monday agreed to decide whether U.S. law banning workplace discrimination on the basis of sex protects gay and transgender workers, as the conservative-majority court waded into a fierce dispute involving a divisive social issue.
At issue in the high-profile legal battle is whether gay and transgender people are covered by Title VII of the Civil Rights Act of 1964, which bars employers from discriminating against employees on the basis of sex as well as race, color, national origin and religion.
The court will take up two cases concerning gay people who have said they were fired due to their sexual orientation, one involving a New York skydiving instructor named Donald Zarda and another brought by a former county child welfare services coordinator from Georgia named Gerald Bostock.
The court will also take up a Detroit funeral home’s bid to reverse a ruling that it violated federal law by firing a transgender funeral director named Aimee Stephens after Stephens revealed plans to transition from male to female.
The court will hear oral arguments and issue a ruling in its next term, which starts in October.
U.S. President Donald Trump’s administration has argued that Title VII does not cover sexual orientation or gender identity. The Republican president’s administration reversed the approach taken under Democratic former President Barack Obama by the U.S. Equal Employment Opportunity Commission (EEOC), which enforces federal laws banning workplace discrimination.
The Title VII fight marks the first major test on a divisive social issue for the nine justices since Trump’s conservative appointee, Brett Kavanaugh, joined the court in October after a contentious Senate confirmation process. Kavanaugh replaced Justice Anthony Kennedy, a conservative noted for his support for gay rights who retired last year.
Kennedy wrote the 5-4 ruling in 2015 legalizing gay marriage nationally, a landmark in the U.S. gay rights movement. Kennedy was also the author of the court’s important 2003 ruling striking down laws criminalizing gay sex.
The Supreme Court has a 5-4 conservative majority that includes two Trump appointees, Kavanaugh and Neil Gorsuch.
The legal fight centers on the definition of “sex” in Title VII. The plaintiffs in the cases, 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 thus is unlawful.
But Trump’s Justice Department and the employers that were sued have argued that Congress did not mean for Title VII to extend to gay and transgender people when it passed the law in 1964.
Trump, who has strong support among evangelical Christian voters, has taken aim at gay rights and transgender rights. At the Supreme Court, his Justice Department has supported the right of certain businesses to refuse to serve gay people on the basis of religious objections to gay marriage.
His administration has also restricted transgender service members in the military, and rescinded protections regarding bathroom access for transgender students in public schools.
Zarda, fired after revealing his sexual orientation in 2010, died in a 2014 accident while participating in a form of skydiving in which people jump off a high structure or cliff. His estate has continued the litigation.
The New York-based 2nd U.S. Circuit Court of Appeals in February 2018 ruled in Zarda’s favor after a trial judge threw out his original claim.
Bostock worked for Clayton County, just south of Atlanta, from 2003 until being fired in 2013 shortly after he started participating in a gay recreational softball league called the “Hotlanta Softball League.” The county has said he was fired following an audit of the program he managed. His lawsuit was thrown out by the Atlanta-based 11th U.S. Circuit Court of Appeals.
Harris Funeral Homes, the employer in the transgender case, is owned by Thomas Rost, who identifies himself as a devout Christian. The company has a strict sex-specific dress code that requires male employees to wear suits and women to wear dresses or skirts. Stephens, formerly known as Anthony Stephens, joined the company in October 2007.
Stephens was fired when he announced plans to transition from male to female.
Rost said that “this is not going to work out,” according to court papers. Stephens subsequently turned to the U.S. Equal Employment Opportunity Commission, which sued on Stephens’ behalf in 2014.
“Neither government agencies nor the courts have authority to rewrite federal law by replacing ‘sex’ with ‘gender identity’ — a change with widespread consequences for everyone,” said John Bursch, a lawyer with the conservative Christian legal group Alliance Defending Freedom, which represents the funeral home.
In 2018, the Cincinnati-based 6th U.S. Circuit Court of Appeals rejected Rost’s argument that he was protected from being held liable for discriminating against Stephens by a law called the Religious Freedom Restoration Act, which bars the government from burdening an individual’s religious practice.
The EEOC, at the time with a majority of Democratic appointees, decided in 2012 that transgender people are protected by the anti-discrimination law and in 2015 added that gay people are also covered. The five-member EEOC currently has one Republican member, one Democratic member and three vacancies.
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