WASHINGTON (CN) - Attorneys representing two gay men and one transgender woman fired from their jobs urged the Supreme Court on Tuesday to rule that federal laws prohibiting discrimination because of sex cover their clients.
The cases the justices heard for more than two hours on Tuesday morning could reshape who receives protections from discrimination under Title VII of the Civil Rights Act of 1964, which bars discrimination "because of sex," among other things. While the court has interpreted this prohibition in several different contexts, it has yet to address whether these protections extend to gay and transgender people.
In the absence of a ruling on the issue of whether Title VII prohibits discrimination based on sexual orientation and gender identity, the states have created a patchwork of regulations. Twenty-six states do not have laws prohibiting discrimination on either basis, though some of those fall under federal appellate courts that have interpreted Title VII to cover those traits.
Asking probing questions of both sides across two hours of argument on Tuesday morning, the justices did not betray how they are leaning in the case.
Some justices, most prominently Justice Samuel Alito, questioned whether the Supreme Court should decide a question so fraught with political implications when Congress and state legislatures are already in position to address the question.
"The Equality Act is before Congress right now," Alito said. "Congress has declined or failed to act on these requests, and if the court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature."
Justice Neil Gorsuch expressed similar concerns, questioning how principles of judicial "modesty" should come into play when interpreting laws like Title VII.
In the context of sweeping transgender employees into federal anti-discrimination laws, the justices were similarly concerned about the practical consequences of their decision, with issues such as single-sex bathrooms and transgender athletes competing in sports sure to come up in the near future.
But at the same time, other justices wondered how the court could endorse discrimination against gay and transgender people when their circumstances are so similar to other groups the court has already ruled are covered under other laws.
Justice Stephen Breyer, for example, probed how the court could allow a business to fire a gay employee who marries a man while at the same time holding a business could not do the same to a Catholic person who married someone of the Jewish faith.
Justice Sonia Sotomayor asked how the court could not deny federal anti-discrimination protections to vulnerable people who "are still being beaten; they are still being ostracized from certain things."