12 • APRIL 26, 2019 • LOSANGELESBLADE.COM
Supreme Court to hear LGBT discrimination cases Pelosi urges Congress to pass Equality Act By CHRIS JOHNSON The U.S. Supreme Court has agreed to hear cases seeking to determine if anti-LGBT discrimination in the workplace is prohibited under federal law. In its orders list released on Monday, the court announced it has granted certiorari in response to three separate petitions seeking clarification on whether Title VII of the Civil Rights Act of 1964, which bars sex discrimination in the workplace, applies to cases of anti-LGBT discrimination. Two of the petitions — the filings for the cases of Zarda v. Altitude Express and Bostock v. Clayton County — sought clarification on whether Title VII applies to cases of sexual orientation discrimination. The other petition — a filing in the case of Harris Funeral Homes v. EEOC — seeks clarification on whether Title VII applies to anti-transgender discrimination. Masen Davis, CEO of Freedom for All Americans, said in a statement the time has come “for the Supreme Court to 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.” Because the court decided to grant certiorari in April, the court will be unable to reach a conclusion by the time it adjourns for this term in June. The decision will have to wait until the next term, which means a ruling may not happen until June 2020. The decision by the U.S. Supreme Court to review whether existing federal law prohibits anti-LGBT discrimination will have “no impact” on the advancement of legislation seeking to ban it explicitly under federal law, a spokesperson for House Speaker Nancy Pelosi (D-Calif.) said in response to the news. Drew Hammill, a Pelosi spokesperson, told the Blade the Supreme Court decision will have “no impact” on the legislative process for the Equality Act, which he said is set for a floor vote in the U.S. House in May. “I would just make the point that House passage sends a strong message to SCOTUS,” Hammill said. Introduced by Rep. David Cicilline (D-R.I. and Sen. Jeff Merkley (D-Ore.), the Equality Act would amend the Civil Rights Act of 1964 and the Fair Housing Act to ban anti-LGBT discrimination in employment, housing, public accommodations, jury service, education, federal programs and
A spokesperson for House Speaker Nancy Pelosi said the Supreme Court would have ‘no impact’ on the Equality Act. Blade file photo by Michael Key
credit. The petition in the Harris case was filed in behalf of Harris Funeral Homes by the anti-LGBT legal firm Alliance Defending Freedom, which called on the Supreme Court to issue a more restrictive interpretation of Title VII that would omit transgender protections. “Neither government agencies nor the courts have authority to rewrite federal law by replacing sex with gender identity — a change with widespread consequences for everyone,” ADF Vice President of Appellate Advocacy John Bursch said. “Businesses have the right to rely on what the law is — not what government agencies want it to be — when they create and enforce employment policies. The funeral home wants to serve families mourning the loss of a loved one, but the EEOC has elevated its political goals above the interests of the grieving people that the funeral home serves.” In a conference call with reporters Monday, Bursch told the Blade the Alliance Defending Freedom doesn’t have a position on whether Title VII applies to cases of sexual orientation discrimination. “The issue in our case is about what Congress meant when it prohibited discrimination based on sex in 1964 and I don’t think any reasonable person would look at what was happening in
1964 and conclude that they intended to address gender identity in any way shape or form,” Bursch said. “I suspect that there are similar arguments that can be advanced with respect to sexual orientation, but they’re obviously distinct cases.” LGBT people have asserted workplace discrimination on the basis of sexual orientation and gender identity constitutes sex discrimination and is unlawful under Title VII for decades. With respect to sexual orientation discrimination, courts have more recently adopted the idea Title VII applies to sex discrimination. The Second Circuit and Seventh Circuit have affirmed Title VII prohibits anti-gay discrimination, but the Eleventh Circuit recently rejected the idea. Case law affirming Title VII covers antitransgender discrimination is more developed. Over nearly two decades, eight federal appeals courts and 35 federal district courts have affirmed anti-transgender discrimination is sex discrimination and unlawful, according to the National Center for Transgender Equality. James Esseks, director of the LGBT project at the American Civil Liberties Union, said in a conference call with reporters a ruling from Supreme Court against LGBT protections would conflict with the public acceptance for LGBT rights and the perception held by 70 percent of people that anti-LGBT discrimination is already unlawful. “There are cases going back to 1977 where courts have protected transgender workers or transgender individuals from sex discrimination,” Esseks said. “In fact, the public would be shocked if the Supreme Court ruled that it’s perfectly legal to fire someone just because she’s LGBTQ.” The ACLU is co-counsel for the gay plaintiff in the Zarda case and the transgender plaintiff in the Harris case, but isn’t affiliated with the Bostock case. Although the upcoming Supreme Court ruling will determine whether anti-LGBT discrimination is prohibited under employment non-discrimination law, it will also impact other non-discrimination laws that bar discrimination on the basis of sex, such as the Fair Housing Act, the Affordable Care Act and Title IX of the Education Amendments of 1972. Esseks pointed out LGBT people have taken advantage of laws barring sex discrimination in cases of discrimination not just in employment, but also education, housing and health care. Transgender people have won cases asserting denial of transition-related health care, including gender reassignment surgery, constitutes unlawful sex discrimination.
“This isn’t a question of is the Supreme Court going to for the first time say that LGBT people get to sue from discrimination,” Esseks said. “LGBT people are suing and have been suing for years and have been getting remedies for the discrimination where the courts say it is real.” (No federal law bars discrimination on the basis of sex in public accommodations, so discriminating against LGBT people in public accommodations will be legal regardless of what the Supreme Court decides.) The Supreme Court has agreed to hear the cases at the same time the Democratic-controlled House is moving forward with the Equality Act, legislation that would amend the Civil Rights Act of 1964 to prohibit anti-LGBT discrimination in employment, housing, credit, jury service, federally funded programs, education and public accommodations” Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement the Supreme Court has “an opportunity to clarify this area of law to ensure protections for LGBTQ people in many important areas of life,” but legislative action is still necessary. “The impact of this decision will have very real consequences for millions of LGBTQ people across the country,” Warbelow said. “Regardless of the eventual outcome, it’s critical that Congress pass the Equality Act to address the significant gaps in federal civil rights laws and improve protections for everyone.” The petitions have been pending before the court for some time. The court granted certiorari the week after the U.S. Eighth Circuit Court of Appeals held arguments in the case of Horton v. Midwest Geriatric Management on whether Title VII covers sexual orientation discrimination. It remains to be seen what decision the Supreme Court will reach. The cases reach the Supreme Court after Trump has remade the bench with the appointments of U.S. Associate Justices Neil Gorsuch and Brett Kavanaugh. LGBT groups, fearing the appointees would be hostile to LGBT rights, opposed the confirmation of both justices. Esseks, nonetheless, told the Blade he’s “hopeful” the Supreme Court will reach a decision affirming LGBT protection under existing law. “I think that the lower courts that have recognized that anti-LGBT discrimination is a form of sex discrimination have it right,” Esseks said. “I think the public has it right. The public already agrees that we are protected. And so, I think the court would be going out on a limb with the public and, I think, legal argument by ruling against us as opposed to ruling for us.”
Losangelesblade.com, Volume 3, Issue 17, April 26, 2019