A Supreme Court remade by Donald Trump said on Monday that it would hear a major LGBTQ rights case, giving the White House a possible assist in its ongoing assault on gay and transgender rights.
The court said it would consider three cases that look at whether Title VII, the federal civil rights law that prohibits workplace discrimination, applies to LGBTQ workers.
The court will look at two decisions that came down on opposite sides of the issue: In Altitude Express Inc. v. Zarda, a Long Island skydiving instructor named Don Zarda was fired after telling a client he was gay. Last year, the 2nd U.S. Circuit Court of Appeals ruled that Zarda’s firing was discriminatory. But the 11th Circuit went the opposite way in a similar case, Bostock v. Clayton County, Georgia.
The Supreme Court will also look at a third lawsuit, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, in which a transgender woman was fired after she transitioned. The 6th Circuit ruled that her firing was discriminatory.
The case marks a pivotal moment in the fight for gay civil rights, but the current composition of the court with its two new Trump appointees ― Brett Kavanaugh and Neil Gorsuch ― has some advocates worried. Kavanaugh replaced retired Justice Anthony Kennedy, considered a swing vote in favor of gay rights.
“Everyone had hoped these cases would reach the Supreme Court with Justice Kennedy still on the court,” said Peter Romer-Friedman, a counsel at Outten & Golden, who’s worked on LGBT rights cases on behalf of workers. “I think the chances of a victory for LGBTQ people and those who believe in civil rights is much smaller than several years ago.”
Title VII makes it illegal to discriminate against workers on the basis of race, religion and, crucially in these cases, sex. For example, under the law, employers can’t fire someone because they’re a woman, or African American or Christian.
For the past several years, some federal courts have held that the prohibition on sex discrimination carries over to sexual orientation and gender identity, reasoning that the concepts are impossible to disentangle. For example, gay women are discriminated against for being partnered with women, but straight men are not discriminated against for doing the same.
“The stakes are very very high,” said Omar Gonzalez-Pagan, a senior attorney with Lambda Legal. “These are cases in which we have an opportunity to cement our understanding that federal law already protects LGBT people from discrimination.”
Currently, 30 states lack laws that explicitly prohibit discrimination in employment, housing and public accommodations on the basis of both sexual orientation or gender identity, according to the Human Rights Campaign. If the Court rules that Title VII’s protections against sex discrimination don’t cover sexual orientation or gender identity, employers in those states will continue to be able to fire someone simply because they are gay.
During his run for president, Donald Trump promised to protect LGBTQ rights, albeit in an Islamophobic remark. “As your president, I will do everything in my power to protect our LGBTQ citizens from the violence and oppression of a hateful foreign ideology,” Trump said at the Republican National Convention in 2016. “Believe me.”
Instead, his administration has spent the past couple of years dismantling legal protections for transgender and gay people in the U.S.
The Trump administration filed a brief in the Masterpiece Cakeshop case in 2017, arguing that bakers should be free to discriminate against same-sex couples.
The Trump White House has been openly hostile to transgender people from the beginning. One of its earliest moves was to roll back protections for transgender students. In July 2017, Trump announced a ban on transgender people in the military in a series of tweets. The Supreme Court temporarily reinstated the ban in January as lower courts continue to challenge it.
Trump’s DOJ had already made its position on Zarda known, arguing in a 2017 brief that Title VII does not protect LGBTQ people from discrimination.
It’s important to note that the White House was under no legal obligation to weigh in on that case, said Sarah Warbelow, legal director at the Human Rights Campaign.
“They chose to weigh in,” she said, noting that this was a flashing sign of the administration’s hostility to LGBTQ people.
The White House hasn’t yet weighed in on this Supreme Court case, but it’s clear that it will be on the opposite side of the federal agency that handles workplace discrimination cases.
The Equal Employment Opportunity Commission, the federal agency tasked with enforcing Title VII, has made it clear that it believes the law protects LGBTQ workers. And an increasing number of LGBT sex discrimination charges have been filed to the EEOC in recent years ― from 1,100 in 2014 to 1,811 in 2018.
Close to 40% of LGBT workers reported experiencing discrimination during their working lives, according to one study from the Williams Institute, a think tank at UCLA School of Law. And 7% said they lost a job because of their sexual orientation.
Oral arguments in the case will likely happen in the fall, and advocates expect that the four liberal justices will come down on the side of protections for LGBTQ workers.
It’s possible that Chief Justice John Roberts could swing their way, too, in order to keep the court in line with its precedent on gay marriage.
It would be “bananas” for the court to hold that same-sex marriage is legal while at the same time saying it’s OK to discriminate against workers in same-sex relationships, said Sally Abrahamson, a partner at Outten & Golden who co-chairs the firm’s LGBTQ rights practice. “I’m holding on to some optimism.”