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How the Supreme Court Might Rule in LGBTQ+ Rights Cases

How Will Each Supreme Court Justice Vote in These Historic LGBTQ+ Rights Cases?

On Tuesday, Oct. 8, the Supreme Court heard — but didn't yet decide — three cases that could have historic implications for LGBTQ+ identifying folks and workplace discrimination. Bostock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G. and G.R. Harris Funeral Homes v. EEOC challenge whether an employee who believes they were unfairly treated or fired because of their identity as LGBTQ+ are protected under the Title XII clause of the 1964 Civil Rights Act, which outlaws workplace discrimination based on sex. If the Supreme Court decides they aren't, LGBTQ+ folks would lose their only legal protection against identity-based employment discrimination and could be fired — legally — for innate parts of their identity. (Currently, the only legislation regarding LGBTQ+ employment rights is stalled in the Senate.)

In the Bostock and Zarda cases, Donald Zarda, a skydiving instructor, and Gerald Bostock who worked as a child welfare service coordinator, both claim they were fired because of their sexuality. Bostock claims joining a gay recreational softball league led to his firing; county officials claim it was because he mismanaged funds. Skydive instructor Donald Zarda, who passed away in 2014 in a base-jumping accident, told a customer in a 2010 skydiving lesson that she shouldn't worry about being so close together because he was gay. Afterward, the customer's boyfriend complained the experience was uncomfortable for her and that Zarda had inappropriately touched her during the lesson and used his sexual orientation as an excuse. Shortly after, Zarda was fired for his behaviour, but Zarda denies he ever touched the customer inappropriately and claims his firing was because of the customer's, and employer's, homophobic views.

In the case of R.G. and G.R. Harris Funeral Homes, Aimee Stevens — a transgender woman — was fired in 2013 from the funeral home after presenting her employer with a letter coming out as trans and explaining why her decision to embrace her identity as a woman was necessary. Two weeks after presenting the letter and coming to work dressed in femme clothing, Stephens was fired for breaking the dress code, or, as Harris Funeral Homes argued: "he wanted to dress like a woman." Stephens and her lawyers instead point to the funeral home's sexist policies of forcing Aimee Stephens to adhere to an stereotype of how someone assigned male at birth should dress, as the reason she was fired.

Zarda and Bostock's cases were argued together, but separate, from Aimee Stephens' case. Each of these cases have gained national attention by LGBTQ+ activists and their opponents. The Trump administration even filed a amicus brief urging the court not to include discrimination based on sexuality and gender expression under Title XII's definition of sex-based discrimination. Stefan Vogler, a postdoctoral fellow at Northwestern University's Centre for Legal Studies, spoke to POPSUGAR about the cases and offered some background that could help us anticipate what the future looks like for LGBTQ+ rights. While The Supreme Court is not expected to release its decisions on these cases until June of 2020, we took a look at how each of the current justices analysed these cases in oral arguments, what their previous rulings and decisions could tell us about their opinions on these cases, and how you can make your voice heard before they rule.

Image Source: Getty / Mark Wilson

Neil Gorsuch

Appointed by Trump in 2018, Justice Neil Gorsuch had already established himself as a conservative, if not libertarian, judge focussed on preserving individual freedoms — religious or otherwise — during his tenure on the 10th Circuit Court of Appeals. Gorsuch has often authored opinions protecting citizen and corporation's right to express and maintain their religious views in all aspects of their business. This includes arguing it was Hobby Lobby's religious right to refuse to provide coverage for contraception in their employee healthcare policy. In fact, Gorsuch even argued more individual business owners should exercise a similar philosophy of aligning religious beliefs with their business policies. This focus on protecting religious freedom could mean Gorsuch would support companies in choosing not to employ LGBTQ+ employees if they cited religious beliefs as a reason.

During oral arguments, Gorsuch seemed to see the arguments from both sides. At one point, he told the plaintiff's lawyer in the Aimee Stephens case that he was "with him on the textual evidence" that the use of sex in Title XII could be applied to include protection against discrimination based on gender. But he also wondered whether such an inclusion "could create social upheaval" in regards to people who appose LGBTQ+ lifestyles for religious reasons. When Aimee Stephens's lawyer David Cole responded that recognising discrimination against trans folks as sex discrimination was simply continuing years of precedent set by federal appeal courts, Gorsuch simply repeated his question as if Mr. Cole had not addressed it.

At first glance, Gorsuch's dedication to Title XII's original intent and literal meaning, otherwise known as textualism, may seem like it was swaying him to the side of the plaintiff. Still, Vogler explained that textualism will likely not be to the benefit of the plaintiffs. "It really depends on whether they [The Supreme Court] buy the arguments that the plaintiff's lawyers put forward, which is that this is about discrimination because of the sex they were assigned in the case of the trans case, or because of who they were in a relationship with in the case of the [Bostock and Zarda] case." Vogler anticipates that if textualism is a part of Gorsuch's decision, it will most likely be used to argue Title XII's use of sex was not intended to mean gender identity or sexual orientation when it was written, and the court isn't going to expand it to include these identities now.

Image Source: Getty / Justin Sullivan

How You Can Make Your Voice Heard

Many experts believe both of these landmark cases may be decided by 5-4 votes — but in which direction is unclear. Based on comments alone, we can assume that Justices Breyer, Ginsburg, Kagan, and Sotomayor will all most likely rule in favour of the plaintiffs and interpret Title XII of the Civil Right's Act to include protections for LGBTQ+ folks under its definition of discrimination based on sex. On the other side, Justices Roberts, Alito, and Thomas will most likely rule in favour of the employers. What about Justices Gorsuch and Kavanaugh? As both have little experience with cases dealing with LGBTQ+ issues, most analysis has focussed on their history of supporting religious freedoms and staunch originalist approach in the case of Gorsuch, to suggest they may side with the employers, but this is not for certain. Both justices were appointed by Trump, whose administration has made its position on this matter clear.

It's important not to forget the human stories rulings such as these will effect. Just consider the picture above, taken in the room when the 1964 Civil Rights Act was signed. Looking at the photo, it's obvious why there was no mention of protections of LGBTQ+ identities; the room is full of white cis-gendered straight-(presenting) men! Similarly, many of the Justices showed a distinct lack of understanding, if not empathy, when analysing the current cases before them. Kagan at one point referred to "transgendered" people, Gorsuch worried providing basic protections to LGBTQ+ folk would not be worth the "social upheaval" it may cause, and for some reason, each justice kept changing the topic to what bathrooms trans folk should be allowed to use. In their arguments, the current justices consistently describe trans folk as if they are are walking contradictions that stand out wherever they are. In reality, invisibility and passing is a way of survival for most "transgendered" people and will become even more important if the justices decide Title XII does not protect LGBTQ+ identifying individuals in the workplace.

Both of these cases, if decided against the employees, will end up vindicating employers with transphobic and or homophobic views while denying LGBTQ+ folks basic human rights. If you would like to make your voice heard, this link provides detailed instructions on how you can write a letter to a specific Supreme Court Justice. If you have the time, I urge you to take action. You can also support through donation to organisations advocating for the rights and equal treatment of LGBTQ+ folk. This link will take you to an article listing 15 trans rights organisations you can donate to. You can also donate to the ACLU here, who represented both Aimee Stephens and Donald Zadar at the Supreme Court.

If you are a person who identifies as LGBTQ+ and are in need of information regarding your legal rights, this link will take you to the National Centre for Transgender Equalities employment legal resource page.

Image Source: Getty / Bettmann

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