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Policy at a Glance: SCOTUS Considers Workplace Protections for the LGBTQIA Community

Civic Engagement Policy and Advocacy Civic Learning and Democratic Engagement
November 21, 2019 Diana Ali NASPA

Our Beyond Schoolhouse Rock series has explored the role of CongressExecutive Agencies, and federalism. It’s time to virtually visit One First Street, NE, Washington, DC, where the Justices of the Supreme Court of the United States (SCOTUS) hear and deliberate cases that have risen through the lower courts and remain contested. The marbled building on One First Street is formidable and impressive, and above the sixteen columns at the main west entrance is incised the phrase “Equal Justice Under the Law.” This phrase has been taken as a promise that all will be held accountable, and equally so, to uphold the laws of the United States, including those protections extended through the sex discrimination clause of Title VII of the Civil Rights Act of 1964.

The Role of the Courts and the Law 

As implied by the engraving at One First Street, court judges are ideally neutral arbiters, working to fairly interpret the meaning of the law. In 2016, Senator Elizabeth Warren (MA-D) published an article to Medium where she drew the concept of “Equal Justice Under the Law,” into question. She pointed to inherent biases seen within Justices of the Supreme Court and issues a preemptive warning of the upcoming political leanings of SCOTUS that could result from appointments following the 2016 Presidential Election. The appointment of Justice Neil Gorsuch in 2017 and Justice Brett Kavanaugh in 2018 then sparked concern regarding standing legal precedent, such as that pertaining to civil rights, immigration, and equitable access to reproductive healthcare, based on their past rulings and the now-right leanings of the Court.

Important to note, however, is that Justices do not always rule as they have in the past, and a right or conservative-leaning court may not necessarily rule down party lines. Last June, for instance, SCOTUS ruled against the Trump administration’s push to add a citizenship question to the 2020 Census. Chief Justice John Roberts found there to be dissonance between the reasoning the Department of Justice provided, and the true motivation behind the decision. Justices apply nuance in interpreting and examining the law making the outcome of SCOTUS decisions somewhat unpredictable. 

While Congress works to construct and create working laws based on the changing needs of the nation’s people, the courts act as legal interpreters, weighing and ruling on the bounds of the law. The nation’s judicial system is based on federalism, or decentralization wherein the power of courts are limited based on hierarchy and jurisdiction. There are three levels in the hierarchy; district courts at the trial-level, appeals courts at the second-level, and SCOTUS as the final decision-maker, the highest court in the land. There are ninety-four district courts at the local level that fall into thirteen circuits, that reach across multiple states’ jurisdictions.

SCOTUS practices careful deliberation in choosing to take up cases. As the highest court in the land, SCOTUS receives up to 10,000 writs of Certiorari every year and ends up taking up less than 100 of these cases to review. These cases are either particularly unique, have far-reaching impacts, and/or represent instances in which the reach of the law has been repeatedly called into question by the lower courts--like that in the case of workplace sex discrimination protections under Title VII of the Civil Rights Act of 1964.

Sex Discrimination Under Title VII of the Civil Rights Act of 1964

In October, Justices heard oral arguments on three cases relating to discrepancies from lower court rulings regarding the sex discrimination clause of Title VII of the Civil Rights Act of 1964.Two of the cases—Altitude Express v. Zarda and Bostok v. Clayton County—involve plaintiffs alleging they were fired due to their sexual orientation, and the third—Harris Funeral Homes v. EEOC—involves a plaintiff alleging they were fired due to their gender identity.  

  • In Altitude Express v. Zarda, the 2nd Circuit Court vacated the district court’s original judgment that held that Title VII does not protect against discrimination based on sexual orientation. Prior to this circuit court ruling, the 7th Circuit Court was the only appellate court to extend Title VII protections to include sexual orientation. Following this decision in February 2018, both the 7th and 2nd Circuit Courts interpreted sex discrimination under Title VII to include sexual orientation. In May 2018 Altitude Express Inc. petitioned SCOTUS to take up the case.
  • In Bostok v. Clayton County, the district court ruled similarly to Altitude Express v. Zarda, citing that sex discrimination under Title VII does not extend to sexual orientation, and motioned to dismiss the case. Unlike the 2nd Circuit Court finding in Altitude Express v. Zarda, the 11th Circuit Court actually affirmed this dismissal. In May 2018, the plaintiff, Gerald Bostok petitioned SCOTUS to take up the case. 
  • In the case of Harris Funeral Homes v. EEOC, the 6th Circuit Court ruled in favor of the plaintiff, Aimee Stephens, after the court in that district originally ruled against the Title VII claim. In July 2018 Harris Funeral Homes petitioned for SCOTUS to take up the case.

The outcomes of these rulings will create a precedent for protections against workplace discrimination across the nation. In her case, Stephens was fired on the grounds of violating a sex-specific dress code following her gender transition. Should SCOTUS rule in favor of Harris Funeral Homes, this finding would set a precedent both that Title VII does not provide protection against workplace discrimination based on gender identity and that Title VII does not protect against workplace gender stereotyping as well.

The National Law Review (NLR) and SCOTUSblog have released analyses on the possible judicial outcomes with the current conservative majority bench. One value of the judicial process, even a partisan one, is that outcomes aren’t so easily drawn down party lines. NLR points to a tendency of the conservative justices to focus on the literal text of the law. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex. In the case of Altitude Express v. Zarda, Donald Zarda claims to have been directly fired as a result of him being a man who loves men, whereas should his sex had been different, and he was a woman who loved men, this would not have been grounds for termination, making it, in a literal sense, a case of sex discrimination.

During oral arguments, Justice Gorsuch noted that while the text of Title VII is “close” in terms of whether or not it can be read to include sexual orientation, the decision to extend protections might be better left to Congress. Justice Sotomayor reasoned that based on the original intent of Congress to establish equality through the Civil Rights Act of 1964, that perhaps Congress has already addressed this, and the extension of protections to sexual orientation and gender identity are a natural modernization of the law.

Following oral arguments, Justices remain divided, with a decision expected in the Spring of 2020. Should SCOTUS decide not to definitely interpret sexual discrimination under Title IX to extend to sexual orientation and gender identity, Congress continues to have the opportunity to inscribe these extensions into law. While November’s presidential election poses a potential barrier to the passage of such legislation, both the Equality Act and the Do No Harm Act would extend anti-discrimination protections to include sexual orientation and gender identity. Interested in staying abreast of SCOTUS oral arguments? Make sure to check out this post on the DACA oral arguments which wrapped up last week.