WASHINGTON – A seemingly divided Supreme Court struggled Tuesday over whether a landmark civil rights law protects LGBT people from discrimination in employment, with one conservative justice wondering if the court should take heed of “massive social upheaval” that could follow a ruling in their favor.
With the court's four liberal justices likely to side with workers who were fired because of their sexual orientation or transgender status, the question in two highly anticipated cases that filled the courtroom was whether one of the court's conservatives might join them.
Two hours of lively arguments touched on sex-specific bathrooms, locker rooms and dress codes.
A key provision of the Civil Rights Act of 1964 known as Title 7 bars job discrimination because of sex, among other reasons. In recent years, some courts have read that language to include discrimination against LGBT people as a subset of sex discrimination.
Justice Neil Gorsuch, President Donald Trump's first Supreme Court appointee, said there are strong arguments favoring the LGBT workers. But Gorsuch suggested that maybe Congress, not the courts, should change the law because of the upheaval that could ensue. “It's a question of judicial modesty,” Gorsuch said.
David Cole, the American Civil Liberties Union lawyer representing fired transgender funeral home director Aimee Stephens, said the situation at the court itself showed such concerns were overblown.
“There are transgender male lawyers in this courtroom following the male dress code and going to the men's room and the court's dress code and sex-segregated restrooms have not fallen,” Cole said.
Two other conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh, did not indicate their views, although Roberts questioned how employers with religious objections to hiring LGBT people might be affected by the outcome.
The first of two cases involved a skydiving instructor and a county government worker in Georgia who were fired for being gay. The second case involves transgender people, and the audience in the courtroom included Stephens, transgender actor Laverne Cox and some people who had waited in line since the weekend.
The Trump administration and lawyers for the employers hit hard on the changes that might be required in bathrooms, locker rooms, women's shelters and school sports teams if the court were to rule that the Civil Rights Act of 1964 covers LGBT people. Lawmakers, not unelected judges, should change the law, they argued.
“Sex means whether you're male or female, not whether you're gay or straight,” Noel Francisco, Trump's top Supreme Court lawyer said.
Justice Samuel Alito, a conservative, seemed to agree with that argument, saying Congress in 1964 did not envision covering sexual orientation or gender identity. “You're trying to change the meaning of 'sex,'” he said.
The cases are the court's first on LGBT rights since Justice Anthony Kennedy's retirement and replacement by Kavanaugh. Kennedy was a voice for gay rights and the author of the landmark ruling in 2015 that made same-sex marriage legal in the United States. Kavanaugh generally is regarded as more conservative.
A ruling for employees who were fired because of their sexual orientation or gender identity would have a big impact for the estimated 8.1 million LGBT workers across the country because most states don't protect them from workplace discrimination.