WASHINGTON (BP) — The U.S. Supreme Court has agreed to consider in its next term whether non-discrimination protections in federal workplace law cover people who identify as gay or transgender.
The high court announced April 22 it would review appeals in three different cases on an issue that touches on the continuing conflict between religious liberty and sexual liberty. The controversial matter has divided federal appeals courts and the two most recent presidential administrations.
The cases provide the justices with the opportunity to resolve whether the classification of “sex” in Title VII of the 1964 Civil Rights Act includes “sexual orientation” and “gender identity.”
Two appeals courts — the Second Circuit in New York City and the Sixth Circuit in Cincinnati, Ohio — ruled in 2018 that gay and transgender individuals, respectively, are protected under the category of “sex” in federal employment law. The 11th Circuit in Atlanta, however, decided last year “sex” does not refer to “sexual orientation.”
Though “sex” was long interpreted to refer only to whether a person is biologically male or female, the Justice Department under President Obama determined it also encompassed “gender identity.” President Trump’s Justice Department has returned to the previous interpretation.
With the cases, the high court has an opportunity to clarify a contentious sphere of law that sometimes involves the conscience rights of business owners, especially Christians, in conflict with the claims of their employees.
Russell Moore, president of the Southern Baptist Ethics & Religious Liberty Commission, said he is encouraged the Supreme Court accepted the cases and prays “for a clear ruling that upholds human dignity in the law.”
“These cases present an opportunity for needed resolution over the definition of sex in federal law,” Moore told Baptist Press in written comments. “The law at stake is of vital importance because it ensures legal protection for women. But we cannot understand equality on the basis of sex if we have ever-changing confusion on the meaning of sex and identity.”
John Bursch, vice president of appellate advocacy for Alliance Defending Freedom (ADF), said April 22, “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. Businesses have the right to rely on what the law is — not what government agencies want it to be — when they create and enforce employment policies.”
LGBT rights advocates expressed hope the high court would define Title VII in an expansive way.
“There is no reason for the Supreme Court to carve [lesbian, gay, bisexual and transgender (LGBT)] people out of a law that by its own terms protects us from discrimination,” said Greg Nevins, senior counsel for Lambda Legal Defense and Education Fund.
In its orders, the Supreme Court combined two cases involving employees in New York and Georgia who said they were fired because they are gay. Those appeals will be argued together. Meanwhile, the justices will hear separately a case involving a male employee at a Michigan funeral home who was fired after he told the owner he identified as a female and planned to begin wearing women’s clothing.
Donald Zarda, who has since died, was a skydiving instructor in New York who filed suit after he was dismissed by Altitude Express Inc. The executors of his estate continued the suit, and the Second Circuit reversed a federal judge’s ruling against Zarda’s claim under Title VII.
The 11th Circuit upheld a federal court’s dismissal of a suit by Gerald Lynn Bostock, a child welfare services worker, against Clayton County in Georgia. A three-judge panel agreed with the lower court that Title VII does not pertain to “sexual orientation.”
In Michigan, the Equal Employment Opportunity Commission (EEOC) brought legal action against the R.G. & G.R. Harris Funeral Homes after owner Thomas Rost dismissed Anthony Stephens, who told Rost in 2013 he was transitioning to a woman, intended to dress accordingly and was changing his name to Aimee. Stephens had worked for Harris Funeral Homes for six years.
Rost is a Christian who seeks to exercise his faith in his business dealings and in his service to the public, according to ADF, which represents Harris Funeral Homes in the case. Rost believed he would violate his faith if he allowed employees to dress as members of the opposite sex during work hours and also had a dress policy for employees that is intended to be sensitive to people who are grieving the loss of a loved one, ADF reported.
“I took some time to think about it, and what Stephens proposed was not in the best interest of the families that we serve,” Rost said in a video interview with ADF. “I feel like a pawn that the government is using to rewrite the law.”
In taking Harris Funeral Homes to court, the EEOC violated the Religious Freedom Restoration Act (RFRA), ADF said in a brief asking a federal court to grant summary judgment to its client. Enacted in 1993, RFRA requires the government to have a compelling interest and use the narrowest means possible in burdening a person’s religious exercise.
“The funeral home wants to serve families mourning the loss of a loved one, but the EEOC has elevated its political goals above the interests of the grieving people that the funeral home serves,” Bursch said in a written statement.
LGBT advocates are urging Congress to act on the legislative front to provide legal protections. On March 13, Democrats in the Senate and House of Representatives introduced the Equality Act, a proposal that would add “sexual orientation” and “gender identity” to the classifications protected in federal civil rights law.
Supporters of the bill say it is needed to protect LGBT rights in such areas as employment, housing and public accommodations — which includes establishments that provide goods, services or programs. Opponents say they oppose unjust discrimination but contend the measure would denigrate Christian morality and coerce behavior in violation of religious beliefs.
Both versions of the Equality Act go so far as to eliminate the use of RFRA as a possible protection for religious adherents in cases covered by the measure.
Nearly half of the 50 states already have protections against LGBT discrimination. Twenty-one states and the District of Columbia have laws explicitly banning discrimination based on “sexual orientation” and “gender identity,” according to the Movement Advancement Project (MAP). Two more states interpret existing law as prohibiting such discrimination, and one state bars discrimination based only on “sexual orientation.” Twenty-six states have no explicit prohibitions.
The cases are Altitude Express Inc. v. Zarda, Bostock v. Clayton County and Harris Funeral Homes v. EEOC.
The high court’s next term will begin in October. Dates for oral arguments in the cases will be announced later.