U.S. Supreme Court Hears Oral Arguments on Gender Identity, Sexuality

On October 8, 2019, the Supreme Court of the United States heard oral arguments in three cases that relate to employment discrimination. In essence, the cases present one simple question: Does Title VII of the Civil Rights Act of 1964 mean what it says?

Two of the plaintiffs (one from Long Island and one from Georgia) claim to have been fired from their jobs due to homosexuality, while the plaintiff in Harris Funeral Homes v. EEOC –a male employee at a Michigan funeral home—was terminated due to his insistence on adopting a “transgender” identity and wearing women’s clothing in the workplace.

Title VII of the Civil Rights Act of 1964 reads, in pertinent part, as follows:

“It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.[1]

Many states—including New York, which passed the Bathroom Law earlier this year—have passed laws banning discrimination based on the vague and problematic categories of “sexual orientation” and “gender identity”. However, Congress has passed no such law. As is their usual custom, LGBT advocates are attempting to use the court system to make policy because their efforts to influence Congress have fallen short.

With the 2018 retirement of Justice Anthony Kennedy (a staunch supporter of judicial activism in LGBT cases), it is hoped that the Supreme Court will move in a more conservative direction in cases like these. While the questions and comments made by Justices Breyer, Ginsburg, Kagan and Sotomayor hinted at their expected support for the plaintiffs’ position, Justice Neil Gorsuch made comments that created cause of concern. According to SCOTUSblog, Justice Gorsuch “at times appeared sympathetic to the plaintiffs’ argument but also expressed concern about the ‘massive social upheaval’ that he believed would follow from a ruling for them.”

Together with Christian advocacy groups in many other states, New Yorkers for Constitutional Freedoms filed an amicus (or friend-of-the-court) brief in the Harris case. In that brief, Attorney Jonathan R. Whitehead, Esq. of Missouri argued that misinterpreting Title VII in this case would interfere with parental rights and would jeopardize single-sex programs and facilities in schools. New Yorkers for Constitutional Freedoms is thankful for the opportunity to influence the outcome of the Harris case through the filing of this amicus brief.

[1]  U.S. Code § 2000e–2(a).