Yesterday’s oral argument at the Supreme Court laid bare many of the legal talking points that right-wing attorneys deploy to oppose equality for LGBTQ+ people.
On October 8, the Supreme Court heard oral arguments in a trio of cases — Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC — that will decide if LGBTQ+ people are entitled to protection under Title VII of the Civil Rights Act of 1964. That landmark bill that forbids workplace discrimination on the basis of characteristics like race, national origin, religion, and sex.
The justices will essentially decide whether or not it’s legal to fire LGBTQ+ people under Title VII’s definition of sex-based discrimination.
Jeffrey Harris, the attorney representing Altitude Express and Clayton County, took a novel approach to argue that employers should have the ability to dismiss workers because of their sexual orientation. Both cases involve gay employees — youth advocate Gerald Bostock and skydiving instructor Donald Zarda — who say they were terminated from their positions for being gay.
In arguments before the court on Tuesday, Harris’ argued is that their employers were not engaging in sex discrimination by firing them because those entities wish to discriminate equally against gay men and lesbians.
“Both men and women may have same-sex attraction,” Harris pointed out.
Harris, a former former associate administrator for the Office of Information and Regulatory Affairs in the Trump administration, went onto say on that employers who issue blanket bans on all gay, lesbian, bisexual, or queer people are applying their discriminatory policies equally to all genders and, therefore, their discrimination is allowed until Title VII.
“Sexual orientation discrimination… has nothing to do with sex discrimination,” he told the court.
Solicitor General Noel Francisco of the Department of Justice, who argued on behalf of the Trump administration, made nearly the exact same argument. “If you treat... gay men and women exactly the same regardless of their sex, you’re not discriminating against them because of their sex,” he said.
Under President Obama, the Department of Justice frequently argued in favor of equality before the Supreme Court. But under Trump, the DOJ has taken a sharp turn, filing a series of friend of the court briefs to SCOTUS in support of firing both queer and trans employees.
Attorney John Bursch, senior counsel with the anti-LGBTQ+ law firm Alliance Defending Freedom, argued on behalf of employers who believe they should be able to fire trans workers and began his statements to the court by misgendering trans women. The Trump administration, in contrast, declined to use pronouns for Aimee Stephens, the former funeral home employee at the center of the third case, in its brief.
“Treating men and women equally does not mean employers have to treat men as women,” Bursch said, echoing the claim that nobody is able to self-identify their gender and that all people are stuck with the gender assigned to them at birth.
Enforcing gender stereotypes is important, Bursch said, because without them “all the distinctions between men and women are gone forever.”
Francisco added that the court may be overstepping to interpret the law more broadly. To rule that trans people should be protected “deprives... people of the ability to struggle with these issues democratically,” he said.
These same talking points have been disseminated for years by anti-LGBTQ+ groups from Family Research Council to Focus on the Family, which have argued that gender is immutable at birth, recognizing LGBTQ+ rights will drastically rewrite the laws of society, and that employers should have the right to dismiss queer and trans workers because of their religious faith.
But while Tuesday’s hearing gave a national platform to the right-wing agenda, it was also clear from the justices’ responses that the larger discourse on LGBTQ+ rights had been dramatically impacted by hate group rhetoric.
In particular, the judges were particularly interested in asking about the implications of Title VII on bathrooms.
Justice John Roberts wanted to know how employer policies on gender roles would impact rules about which restroom workers should use, and conservative colleague Neil Gorsuch noted that their ruling could preclude gender-specific bathrooms. Justice Sonia Sotomayor asked how to balance the needs of trans workers with those who don’t want to use the same bathroom.
In transcripts of the hearing posted by former BuzzFeed reporter Chris Geidner, questions related to bathrooms came up dozens of times.
It’s impossible to know exactly how the justices will respond to these arguments in their eventual ruling. But observers speculate that Neil Gorsuch could emerge as an unlikely swing vote. The Trump appointee seemed open to considering that bias on the basis of sexual orientation is another form of sex-based bias but worried of “massive social upheaval” if the court rules in favor of LGBTQ+ rights.
"American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide,” he wrote in 2005.
A decision on the cases is expected by June 2020.