October 8, 2019 | From Daily Caller
UPDATE: The Supreme Court seemed closely divided Tuesday as to whether a federal employment nondiscrimination law covers LGBT workers.
It appeared that President Donald Trump’s two appointees to the high court will be decisive to the outcome of Tuesday’s cases. Justice Neil Gorsuch called the dispute a close case, while Justice Brett Kavanaugh — who does not have a lengthy record on gay rights issues — was virtually silent over the two hours of arguments.
Continue praying for each of the Supreme Court Justices by name, that they would not deviate from what the Civil Rights Act
was intended to do–not allow discrimination for those immutable qualities (those qualities we cannot change).
Title VII of the Civil Rights Act bans discrimination in employment based on characteristics like race or sex. Though sexual orientation (gays and lesbians) and gender identity (transgender people) are not specifically enumerated categories, the plaintiffs in Tuesday’s cases say Title VII’s bar on sex-based discrimination also bans unequal treatment of gays and lesbians.
Tuesday’s arguments featured three LGBT plaintiffs. The first two, Gerald Bostock and the late Donald Zarda, are gay. They claim they were fired for their sexual orientation. The third plaintiff is a trans woman named Aimee Stephens, who lost employment as a funeral home director after deciding to transition. The defendant-employers in all three cases dispute that sexual orientation or gender identity were the reason for dismissal.
Judicial conservatives emphasize the original public meaning of a text when interpreting the law. That originalist approach makes this a straightforward case, the defendants say.
“The term ‘sex’ as commonly understood in the era during which Title VII was enacted meant the trait of being male or female and did not refer to sexual orientation or homosexuality,” the defendants told the justices in legal filings, citing contemporary dictionary definitions.
Yet another legal theory conservatives champion, textualism, could require a different result. Textualists say the language itself should be the most important factor when interpreting a law. By the plaintiffs telling, originalism and textualism point in different directions in these cases, making them as significant for gay rights as they are for conservative legal theory.
The text of Title VII bars sex-based discrimination. The plaintiffs say unequal treatment of gay workers is classic sex discrimination, since it punishes one sex for conduct that is tolerated when performed by the opposite sex. As one filing before the high court reads, to discriminate against men who are attracted to men, but not women who are attracted to men, is “sex discrimination pure and simple.”
“Donald Zarda’s claim that Altitude Express fired him ‘because of sex’ could actually be adjudicated without ever using the term ‘sexual orientation’ or ‘gay,’” the plaintiffs wrote. “The claim could accurately be framed entirely in terms of sex and nothing else: Zarda was fired for being a man attracted to men.”
In addition, the plaintiffs say unequal treatment of LGBT workers is rooted in unfair sex stereotypes, which they believe Title VII already bans, citing a 1987 Supreme Court decision.
The arguments over transgender discrimination are largely similar, yet the consequences could be different. The defendants say no sex-based policy could survive if Title VII reached trans people.