On October 8, the U.S. Supreme Court heard Bostock v. Clayton County, et al. and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC. Bostock is a consolidation set of cases where two men contend they were fired for being gay. In Harris Funeral Homes, a trans woman was fired after informing her employers of her intent to transition her gender. The Court’s decision will determine whether it violates federal law for employers to discriminate against LGBTQ+ people. The League of Women Voters of the United States joined 57 other civil rights organizations led by The Lawyers’ Committee on an amicus brief in support of the employees.
What are the arguments?
Pamela Karlan, representing Bostock and Zarda, argued that the Court does not have to expand its definition of “sex” in order to rule in her clients’ favor. Ms. Karlan argued that under Manhart’s comparator test, it is on its face sex discrimination to fire a man for a reason that would not result in his firing were he a woman. When urged by Justice Sotomayor to clarify what the Court was being asked to compare, Ms. Karlan answered that the proper comparison is whether an employer treats a man who dates men differently from a woman who dates men.
Jeffrey Harris, arguing on behalf of the employers in Bostock, said that the test from Manhart is not applicable in this case. The comparator test asks whether a person of a different sex would be treated differently in the same circumstances. Mr. Harris argued that asking the Court to compare a gay man to a heterosexual woman was asking the Court to compare sexual orientation and sex, instead of just sex alone as he believes Title VII requires.
David Cole, representing Stephens in Harris Funeral Homes, argued that Aimee Stephens experienced sex stereotype discrimination when her employer fired her upon learning that she was trans. Mr. Cole said that Ms. Stephens experienced Title VII sex discrimination when her employer treated her, a woman assigned male at birth, differently than it would a woman assigned female at birth. Under Title VII’s definition of “sex,” Aimee Stephens was discriminated against because she was assigned a male sex and would not have been fired if she were assigned a female sex. After a few justices pressed Mr. Cole on “the bathroom question,” he made it clear that he believes forcing a trans person to use the bathroom aligned with the sex they were assigned at birth would be sex discrimination but that the Court didn’t need to decide that issue to rule in favor of Stephens in this case.
John Bursch argued on behalf of Harris Funeral Homes. After Justice Gorsuch pointed out that sex is at least a factor in both cases which brings them under Title VII consideration, Mr. Bursch answered that the law allows employers to treat people of a different sex differently without it rising to illegal discriminatory treatment. Mr. Bursch further argued that the only discrimination in the Harris Funeral Homes case was against a trans woman for being trans, which he believes is not a violation of Title VII.
U.S. Solicitor General Francisco argued on behalf of the federal government, supporting the employers in both cases—though the federal government originally supported Stephens in Harris Funeral Homes. General Francisco argued that finding in favor of Bostock, Zarda, and Stephens would remove the issue from Congress and the democratic process. In his rebuttal argument, Mr. Cole pointed out that the Court’s job is to interpret statutes, and Congress can always change a statute if it disagrees with the Court’s interpretation.
What does the Court want to know?
The Court focused primarily on one question: (1) Why should the Court expand the definition of “sex discrimination” to protect people Congress did not intend to protect when it passed Title VII in 1964?
The attorneys representing Bostock, Zarda, and Stephens insisted that the Court does not have to expand the definition of "sex discrimination" to rule in favor of their clients, but that the Court is free to extend the protections from sex discrimination to types of people or behavior that the Congress may not have contemplated in 1964—as it did for Ann Hopkins in the Price Waterhouse case of 1988.
A decision is expected in this case in summer 2020.