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Argument analysis: Justices divided on federal protections for LGBT employees

Author: Amy Howe, Howe on the Court, on SCOTUSblog , Published on: 8 October 2019

This morning, in a packed courtroom, the Supreme Court heard oral argument on whether Title VII protects gay, lesbian and transgender employees. Because fewer than half of the 50 states specifically bar discrimination based on sexual orientation or gender identity, the court’s ruling could be significant.

Karlan [lawyer for the plaintiffs] spent much of her time at the lectern dealing with two main sets of concerns. The first was the argument that Congress could not possibly have intended to bar employment discrimination based on sexual orientation when it passed Title VII back in 1964…Karlan countered that the Supreme Court has recognized other claims that Congress could not have contemplated when it enacted Title VII…

Arguing on behalf of the employers, attorney Jeffrey Harris had to grapple with questions [from]… the court’s more liberal justices about the text of Title VII. Justice Elena Kagan led the way, telling Harris that the test to determine whether there is discrimination under Title VII is whether the same thing would have happened if the employee were a different sex. That test, she suggested to Harris, comes out against the employers: Although Bostock and Zarda were fired for being gay – that is, for being men who were attracted to other men – they would not have been fired if they were women who were attracted to men. 

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