By Greg Stohr and Kimberly Robinson
The U.S. Supreme Court appeared divided over whether federal anti-discrimination law protects gay and transgender employees, as the justices heard arguments in a clash that will define the workplace rights of millions of people.
The two-hour session Tuesday suggested that LGBT advocates had at least a chance to win the vote of conservative Justice Neil Gorsuch, along with the court’s four liberal members. Gorsuch sent mixed signals, calling the case “really close.”
The court is considering the reach of the main federal job-bias law, known as Title VII, which explicitly bars discrimination on the basis of sex. The key question is whether employer decisions based on sexual orientation and gender identity qualify as sex discrimination.
Gorsuch, a Donald Trump appointee who focuses heavily on the words of disputed statutes, said that sex was at least a “contributing cause” to a decision to fire someone because of sexual orientation.
But later Gorsuch asked whether the court shouldn’t leave matters to Congress, saying the court’s decision could lead to “massive social upheaval.”
Trump’s other appointee, Brett Kavanaugh, said very little and didn’t tip his hand.
Another conservative justice, Samuel Alito, was skeptical of the workers’ claims, at one point telling the lawyer for two gay men that “your whole argument collapses.”
Chief Justice John Roberts expressed concern about the impact on religious organizations if the high court were to side with LGBT workers. He was one of several justices who asked what the cases could mean for single-sex bathrooms.
The court’s four Democratic appointees suggested they would back the workers. Justice Elena Kagan said the text of Title VII was “pretty firmly” in the employees’ favor.
Although the Supreme Court legalized same-sex marriage nationwide in 2015, gay and transgender people can still be fired in much of the country. More than half of the 8 million LGBT workers in the U.S. live in states that don’t explicitly bar such discrimination under their own laws, according to the UCLA School of Law’s Williams Institute.
The court is considering the sexual orientation issue using the cases of Gerald Bostock, a former employee at a Georgia juvenile court, and Donald Zarda, a now-deceased skydiving instructor. Both men sued claiming they were fired because they were gay.
The gender-identity case involves Aimee Stephens, who was fired from her job as a Michigan funeral home director after telling the owner she was preparing to live openly as a woman.
The workers and their supporters say past Supreme Court decisions have interpreted Title VII broadly. They contend that sexual-orientation and gender-identity bias are forms of sex discrimination because they necessarily depend on the gender of the person being targeted.
The employers, as well as the Trump administration, say lawmakers weren’t thinking about sexual orientation and gender identity when they passed Title VII as part of the 1964 Civil Rights Act. The employers say lawmakers have repeatedly tried — and failed — to broaden the law’s coverage.
The Trump administration shifted the government’s position when it said in a 2017 court filing that federal law doesn’t prohibit sexual-orientation discrimination. Two years earlier, when Barack Obama was president, the Equal Employment Opportunity Commission said sexual orientation discrimination was covered under Title VII.
The court will rule by early July. The disputes could highlight the impact of Kavanaugh’s confirmation last year to succeed Justice Anthony Kennedy, who usually backed gay rights.
Courts around the country are divided about the question. Federal appeals courts split in the two sexual orientation cases, siding with Zarda’s estate but ruling against Bostock.