The U.S. Supreme Court has agreed hear cases seeking to determine once-and-for-all if anti-LGBT discrimination in the workplace is prohibited under federal law.
In its orders list on Monday, the court announced it has granted certiorari in response to three separate petitions seeking clarification on whether Title VII of Civil Rights 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.”
“Like other Americans, LGBTQ people want to make a living and provide for their families,” Davis said. “A win in these cases would improve the lives of millions of LGBTQ people and their families as well as send a message about the inherent importance of all of us being able to go to work, to live our everyday lives free from discrimination, and to have the means to take care of ourselves and our loved ones.”
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.”
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.
Although the ruling on its face will determine whether anti-LGBT discrimination is prohibited under employment non-discrimination law, it will also impact non-discrimination laws that bar discrimination on the basis of sex, such as the Fair Housing Act and Title IX of the Education Amendments of 1972. (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 petitions have been pending before the court for some time. The court grants 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.
The Trump administration has already asserted LGBT workers aren’t entitled to non-discrimination protections under Title VII. The U.S. Justice Department argued Title VII shouldn’t apply to cases of sexual-orientation discrimination before the U.S. Second Circuit Court of Appeals in the Zarda case and file a brief before the Supreme Court arguing the U.S. Sixth Circuit Court of Appeals wrongly decided Title VII applies to cases of anti-transgender discrimination in the Harris case.
But the U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal civil rights laws, has continued to argue Title VII applies to LGBT workers in the Trump administration. Last week, the EEOC sent a lawyer to participate in oral arguments in the Horton before the Eighth Circuit to assert those protections apply to cases of anti-gay 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 appointments would be hostile to LGBT rights, opposed the confirmation of both justices.
Laura Durso, vice president of the LGBT research and communications Project at the Center for American Progress, said in a statement the Supreme Court should issue a ruling affirming non-discrimination for LGBT people.
“People should have the right to love who they love and be who they are without fear of losing their job,” Durso said. “Too many lesbian, gay, bisexual, and transgender people face bias in the workplace, making it harder to provide for themselves and their families. The Supreme Court should affirm the growing consensus of federal courts in recognizing the reality of this discrimination in order to ensure that LGBT employees are guaranteed the same protections afforded to other workers.”