The Supreme Court Just Took Up Three Cases That Could Upend LGBTQ+ Rights

As well as employment discrimination protections for women, gender non-conforming people, and many others.
The Supreme Court with a rainbow American flag.
BRENDAN SMIALOWSKI/Getty Images

The Supreme Court on Monday announced that it will hear three major cases involving LGBTQ+ employment discrimination when it convenes this fall. Together, their presence on the court’s docket all but ensures that the country will finally be forced to address a glaring gap in its federal nondiscrimination protections, which currently do not explicitly include LGBTQ+ people.

For some LGBTQ+ policy analysts, the news was more worrisome than hopeful. Slate writer Mark Joseph Stern warned in an article Monday that if the court were to rule against LGBTQ+ workers, it would do so by tightening the federal definition of what constitutes ‘sex’ and sex discrimination. For years, courts have used the inclusion of ‘sex’ as a protected class in federal civil rights law to not only interpret protections for LGBTQ+ people, but to protect women in ways that aren’t explicitly stated in the law. “Title VII, after all, contains no explicit bar on sexual harassment; it only outlaws discrimination ‘because of sex,’” wrote Stern. If the court were to take a more limited view of Title VII, it would result in “an unprecedented rupture in civil rights law that threatens far more than just LGBTQ people,” Stern writes.

Two of the cases involve gay men who were fired from their jobs: Altitude Express v. Zarda and Bostock v. Clayton County, Georgia. The third, R.G. & G.R. Harris Funeral Homes v. EEOC, was filed on behalf of Aimee Stephens, a transgender woman fired after six years on the job after she told her boss she was transitioning.

The Supreme Court’s announcement comes one month after Congress re-introduced the Equality Act, legislation that would add gender identity and sexual orientation as protected classes to existing federal civil rights law. Currently, no such federal nondiscrimination protections exist for LGBTQ+ Americans. According to the LGBTQ+ policy tracking group Movement Advancement Project, you can currently be legally fired from a job because of your gender identity or sexual orientation in 26 U.S. states.

In a statement emailed to them., Masen Davis, CEO of the LGBTQ+ nondiscrimination campaign Freedom For All Americans, expressed hope that the Supreme Court justices would “cement into place our core American values of treating all people with respect and dignity and allowing everyone a fair shot no matter who they are.”

"No one who works hard and performs their job well should worry that they may face discrimination simply because of who they are or who they love,” said Davis.

Even though gender identity and sexual orientation have never been explicitly included in federal civil rights law as protected classes, multiple courts over the years have ruled that discrimination against LGBTQ+ people is a form of sex discrimination — and ‘sex’ remains a federally protected class under Title VII of the Civil Rights Act of 1964, the portion of the law that pertains to employment.

A ruling from the Supreme Court would essentially decide whether the federal definition of ‘sex’ does indeed include sexual orientation and gender identity.

“Title VII obviously requires equal treatment of men and women, so it was wrong to treat Donald Zarda [or Gerald Bostock] differently because of his attraction to men, when a Donna Zarda or Geraldine Bostock would not have endured discrimination for liking men,” explained Greg Nevins, Senior Counsel and Workplace Fairness Program Strategist for Lambda Legal, in a statement Monday. “And when Aimee Stephens’ employer fired her after learning that she was undertaking a gender transition, her employer discriminated against her because of sex. These arguments couldn’t be more straightforward, and we are hopeful that the Court will confirm that they are correct.”

With the court agreeing to hear the three cases this fall, a decision will likely land during the most heated months of the 2020 presidential campaign. Depending on the court’s ruling, that could put the Equality Act at the top of the list of promises for Democratic presidential contenders to make to ensure the vote — and draw even more attention to the nation’s first viable openly gay candidate, Pete Buttigieg.

“Today’s decision by the Court underscores the urgency of passing federal and state laws that expressly prohibit discrimination based on sexual orientation or gender identity, which have overwhelming public support,” said Shannon Minter, legal director at the National Center for Lesbian Rights, in an email Monday. “It is time to add these protections to our nation’s laws, to ensure that no person is denied employment, housing or access to public accommodations simply because of who they are.”

Minter is right: nondiscrimination protections for LGBTQ+ people have the overwhelming support of Americans in every state in the country, from almost every conceivable background, according to recent polls.

In a 2018 nationwide poll conducted by the nonpartisan Public Religion Research Institute, released this March, a majority of Americans from every state in the U.S. showed support for broad nondiscrimination protections (in housing, employment, and public accommodations) for LGBTQ+ people. Even a majority of those who self-identified as conservative Republicans backed the idea, as well as majorities from every religious background, including Catholics, Mormons, and Jehovah’s Witnesses.

But if the court — which currently leans conservative after President Trump installed two justices — decides against LGBTQ+ employment protections, it could result in some chaotic state-by-state interpretations of the law. “A Supreme Court decision reversing these established protections would be catastrophic for LGBT people and disruptive for businesses, who would face a patchwork of conflicting state laws,” said Minter.

Get the best of what's queer. Sign up for our weekly newsletter here.