USA: Supreme Court hears oral argument for granting protection against discrimination at work to LGBTQ community

Ted Eytan

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15 October 2019

The trans lawyer who defended trans rights in the landmark Supreme Court case has a sobering warning

Author: Lily Wakefield, Pink News

A trans lawyer who defended trans rights in a landmark Supreme Court case on October 8 has warned that the decision on the rights of LGBT+ workers will affect everyone...

Strangio was one of the lawyers defending Aimee Stephens in the Supreme Court, who was fired from Harris Funeral Homes in Detroit, Michigan, for being trans...

He explained: “Ceding to the administration or the employers to define the contours of permissible roles and expressions for men and women in the workplace will lead to disastrous results for all of us...

“After all, without protection from discrimination on the basis of sex, all people, regardless of gender identity or sexual orientation — so, including cis and straight people — can be lawfully fired (or not hired or denied promotions) for failing to dress or behave in a way that their employer deems ‘feminine’ or ‘masculine’ enough...

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8 October 2019

Argument analysis: Justices divided on federal protections for LGBT employees

Author: Amy Howe, Howe on the Court, on SCOTUSblog

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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8 October 2019

Supreme Court Considers Whether Civil Rights Act Protects L.G.B.T. Workers

Author: Adam Liptak & Jeremy W. Peters, New York Times (USA)

Job discrimination against gay and transgender workers is legal in much of the nation, and the wide-ranging arguments underscored the significance of what could be a momentous ruling

If the court decides that the law, Title VII of the Civil Rights Act, applies to many millions of lesbian, gay, bisexual and transgender employees across the nation, they would gain basic protections that other groups have long taken for granted.

The cases were the court’s first on L.G.B.T. rights since the retirement last year of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions. And without Justice Kennedy …the workers who sued their employers in the three cases before the court may face an uphill fight.

For the most part, the justices seemed divided along predictable ideological lines on Tuesday. But there was one possible exception: Justice Neil M. Gorsuch, a member of the court’s conservative majority, who asked questions suggesting that his vote might be in play.

Justice Gorsuch is an avowed believer in textualism, meaning that he considers the words Congress enacted rather than evidence drawn from other sources. And he repeatedly suggested that the words of Title VII may well bar employment discrimination based on sexual orientation and transgender status. 

“If the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation,” he [Justice Alito] said, “we will be acting exactly like a legislature.”

Solicitor General Noel J. Francisco, representing the Trump administration, said it was up to Congress and not the courts to change the law.

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7 October 2019

The Supreme Court’s case on LGBT discrimination shouldn’t be a close call

Author: Washington Post (USA)

Having begun its term Monday, the Supreme Court jumps into one of its highest-profile cases Tuesday…

The justices will hear oral arguments in three cases testing whether federal law bars employers from discriminating against LGBT people based on their sexual orientation or gender identity. Gerald Bostock…and Donald Zarda...were both fired based on their sexual orientation. Another plaintiff, former funeral director Aimee Stephens, was fired when she revealed to her boss that she would begin dressing as a woman. Her employer explained that her plans were against “God’s commands.”

These plaintiffs argue that their firings were illegal under Title VII of the 1964 Civil Rights Act…Firing someone because he is gay or she is transgender, they argue, is a form of sex discrimination. “Because an employee’s sex is a necessary element of his sexual orientation, a decision because of the latter is also a decision because of the former,” Mr. Bostock’s lawyers argue. 

The defendants and their supporters — including the Trump administration — retort that Congress did not have gay, lesbian, bisexual or transgender people in mind when it passed the Civil Rights Act a half-century ago.

True. But the court already has found that Title VII bars firing a woman not only because an employer does not believe women should be working, but also “reasonably comparable evils,” as Justice Antonin Scalia wrote in 1998. So, according to the court, employers cannot discriminate against women because they fail to fulfill gender stereotypes…

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3 October 2019

USA: Supreme Court to decide if prohibition of sex discrimination at work applies to LGBTQ people through Civil Rights Act

Author: Dominic Rushe, Guardian (UK)

"'There is no protection': case of trans woman fired after coming out could make history," 30 Sep 2019

...Stephens, modest, quietly spoken but full of steely resolve, is at the center of the most important LGBTQ rights case to come before the US supreme court since it ruled in favor of marriage equality in 2015. After years of mixed decisions in lower courts the justices must decide whether or not sex is a defining factor when LGBTQ people are protected from discrimination at work by the Civil Rights Act, the landmark 1964 legislation that outlaws discrimination based on race, colour, religion, sex, or national origin...

...When Stephens came out at work she was fired from her job as a funeral director. Her boss, Thomas Rost, a devout Christian, refused to accept Stephens was a woman. Rost testified that he fired Stephens because she “was no longer to represent himself as a man” and “wanted to dress as a woman”, according to court documents, and said her proposal violated the funeral home’s dress code...

Stephens’ case is one of three discrimination cases involving LGBTQ individuals that the court will hear on 8 October and the first supreme court case involving the civil rights of transgender people...

Stephens’ case is not unusual. Only 21 out of the 50 states in the US have specific civil rights protections for LGBTQ people. While it is now legal for same-sex couples to marry in any state, they can still be fired for coming out across much of the country...

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5 July 2019

USA: Over 200 companies sign Supreme Court brief in support of LGBTQ workers

Author: Tim Fitzsimons, NBC News

"Over 200 major companies sign Supreme Court brief in favor of LGBTQ workers," 2 July 2019

More than 200 major U.S. and international corporations signed an amicus brief submitted to the Supreme Court on Tuesday arguing that excluding sexual orientation and gender identity from federal civil rights law “would undermine the nation’s business interests.” “The 206 businesses that join this brief as amici... which range across a wide variety of industries... share a common interest in equality because they know that ending discrimination in the workplace is good for business, employees, and the U.S. economy as a whole.”

... The signatories include Airbnb, Amazon, American Airlines, Apple, Bayer, Bank of America, Best Buy, Domino’s, Facebook, GM, Google, Hilton, IBM, JP Morgan Chase, Marriott, Macy’s, Morgan Stanley, Nike and Comcast-NBCUniversal... According to the Human Rights Campaign... [the brief] “has more corporate signers than any previous business brief in an LGBTQ nondiscrimination case.” The brief comes before the high court hears arguments Oct. 8 in three cases involving LGBTQ workplace discrimination... Without a federal law explicitly banning workplace discrimination based on sexual orientation and gender identity, a number of states across the United States have passed their own measures to outlaw such discrimination. However, it is currently legal in 26 states to fire someone solely due to their sexual orientation or gender identity.

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