The Supreme Court announced this week they will hear multiple cases concerning civil rights laws and anti-LGBTQ discrimination. These will be heard as part of their October 2019 term, with the decisions being released next year. Two cases revolve around discrimination based on sexual orientation and one around gender identity. Both are significant for the LGBTQ community as the decisions made could have a long-lasting impact on our everyday lives. The fact that the court is currently (and unfairly) stacked with conservative judges obviously doesn't bode well for gay rights, but time will tell.
Before I get into that, let's start with the cases themselves. In one of the sexual orientation cases, Gerald Bostick, a social worker employed by Clayton County, Georgia, says he was fired for being gay. County officials claim he was fired for other reasons. The 11th Circuit Court of Appeals said Title VII of the Civil Rights Act of 1964 — which bans sex discrimination — did not apply because it does not explicitly address sexual orientation.
In the other sexual orientation case, skydiving instructor Donald Zarda also claims he was fired from his job in 2010 after telling a client he was gay. His employer, Altitude Express, says he was really fired for touching the client inappropriately. The U.S. Court of Appeals for the 2nd Circuit did not rule on the merits of the case but, unlike the Georgia case, it did say that Title VII bans sexual orientation discrimination.
The Supreme Court often likes to hear cases where there is disagreement between circuits, as there is with these two cases. Altitude Express appealed to the Supreme Court in this instance, arguing that the scope of the law should be decided by legislators, not the courts. To complicate the second case even more, Altitude Express has now been acquired by another company and Zarda died in an accident five years ago, with his sister and his partner pursuing the case since.
In the gender identity case, funeral director Aimee Stephens was fired from Michigan-based R.G. & G.R. Harris Funeral Homes in 2013 after announcing she was transitioning from male to female and would begin presenting as a woman at work. The funeral home said she violated its dress code by wearing women's clothing and her boss, Thomas Rost, also claims she violated his religious beliefs about gender being God-given. The 7th Circuit Court of Appeals ruled companies cannot arbitrarily fire trans people and that discrimination based on gender identity can't be separated from discrimination based on sex. The funeral home is being represented by the anti-LGBTQ Alliance Defending Freedom, which appealed the case to the Supreme Court.
The Supreme Court's decisions in these cases will have lasting repercussions on LGBTQ Americans in terms of workplace discrimination. Should the justices decide in favor of these companies, it will open the door to even more widespread discrimination against LGBTQ Americans, who might even get fired just for being gay. Currently there are 30 states where this is already legal, but a Supreme Court ruling could encourage more states to allow discrimination. Conversely, should the court rule against the companies, LGBTQ Americans will finally have anti-discrimination protections in all 50 states.
Lawyers also say that these decisions will reach beyond just employment discrimination, as they might be applied to housing and any other area where federal law prohibits sex discrimination. One area that the Civil Rights Act does not address is sex discrimination in public accommodations, which the recently introduced Equality Act seeks to address.
So how is the court likely to rule? Last year, in the case of Colorado baker Jack Phillips refusing to create a wedding cake for a same-sex couple because of his religious beliefs, the justices ruled in Phillips's favor. However, they came to this decision, they said, because the Colorado Civil Rights Commission that ruled against Phillips had shown insufficient respect for his religion. The Supreme Court did not take it further and therefore did not grant a license to discriminate.
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These new cases could potentially change that.
At present there are only four liberal justices on the bench, as Trump appointed two conservative ones after taking office. His two nominees, Neil Gorsuch and Brett Kavanaugh, were part of the 5-4 block that voted back in January to uphold Trump's trans military ban while it was challenged in the lower courts.
While the court has refrained from making any sweeping decisions on LGBTQ rights, they've basically latched on to legal loopholes to rule against our community. This is even more frustrating because Gorsuch's seat should have been rightfully filled by Obama's nominee Merrick Garland when Justice Antonin Scalia died in February 2016. The Republican-controlled Congress, however, refused to even consider an Obama nomination before the presidential election.
Yet when Democrats argued in 2018 that retiring Justice Anthony Kennedy's seat should wait to be filled until after the midterm elections, the Republican-controlled Congress hypocritically took the opposite stance, voting to approve Trump's nominee rather than waiting until after the election. Had Obama been able to appoint Scalia's replacement, or had the now Democrat-controlled House been able to push a more moderate choice than the questionable Kavanaugh, I would have a lot more confidence in the Supreme Court expanding, not limiting, LGBTQ rights. This just demonstrates that even if Trump doesn't win in 2020 or appoint any more Supreme Court justices, he can still have a long-lasting impact for LGBTQ community. Fingers crossed that the court stays on the right side of history and takes the stand it did when it voted in favor of marriage equality in 2015.