LGBT Discrimination Cases Face Supreme Court Review

WASHINGTON (CN) – Taking up multiple cases Monday involving LGBT discrimination, the U.S. Supreme Court is poised to clarify federal civil rights law for millions of Americans who live in states where their protections are murky.

About 20 states specify LGBT protections in their laws – some include transgender people under “gender identity,” others do not. While there is no specific protection at the federal level, courts around the country have weighed in on the issue, asking if the term “sex” under Title VII of the Civil Rights Act encompasses gender identity or sexual orientation, with different results. The cases accepted today could be the final word on these questions.

A transgender funeral director named Aimee Stephens is at the center of a case from Georgia. 

Stephens presented as a man for the first six years after R.G. & G.R. Harris Funeral Homes hired her in 2007, and it undisputed that she was fired in 2013 after she revealed her intention to start dressing as a woman and ultimately undergo sex-reassignment surgery.

For the funeral home’s owner, Thomas Rost, the problem was not that Stephens identified as female but that she would dress as such.

Rost fired Stephens for violations of the dress code, which demands that employees avoid disrupting or distracting clients as they process their grief. Specifically the dress code says male employees must wear pant suits, while female employees are required to wear skirts suits.

Stephens filed a discrimination charge with the Equal Employment Opportunity Commission, which in turn sued Harris Homes in 2013.

At summary judgment, a federal judge ruled for Harris Homes, but the Sixth Circuit reversed for the EEOC last year.

Per its custom, the U.S. Supreme Court did not issue any statement Monday in taking up the case. The order notes only that the court will answer “whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping” under the 1989 case Price Waterhouse v. Hopkins.

Attorneys for Harris Homes at the group Alliance Defending Freedom did not return a request for comment, but the Foundation for Moral Law cheered Monday’s grant of certiorari. 

“As this case illustrates, the lower federal courts have been rewriting Title VII in a way that forces Christians to approve of transgenderism (SIC) despite their religious objections,” foundation attorney Matt Clark said in a email. “We hope that the Supreme Court will use this opportunity to not only defend the doctrine of separation of powers, but also to protect religious liberty.”

Created by controversial former judge and Senate candidate Roy Moore, the Alabama-based foundation wrote a brief supporting the petition by Harris Homes.

The Department of Justice filed a brief in the case as well that suggested the Sixth Circuit applied a flawed legal interpretation. “It is highly doubtful that enforcement of a sex-specific dress code by itself constitutes discrimination on the basis of gender identity, given that the code applies equally to employees based on their sex regardless of their gender identity,” the government’s brief says.

Stephens has intervened in the case, represented by the American Civil Liberties Union.

“Most of America would be shocked if the Supreme Court said it was legal to fire Aimee because she’s transgender or Don because he is gay,” James Esseks, director of the ACLU LGBT & HIV Project, said in a statement Monday.

“The LGBTQ community has fought too long and too hard to go back now, and we are counting on the justices not to reverse that hard-won progress,” Esseks added.

In addition to the transgender case, the high court granted certiorari Monday for a pair cases that involve fired gay workers.

The first, which also originated in Georgia, involves Gerald Bostock who served Clayton County for over a decade as a child welfare services coordinator assigned to the Juvenile Court.

Though the county purported to fire Bostock for misconduct, Bostock says this was just a pretext. As noted in his petition for certiorari, an individual with significant influence in the Clayton County court system began openly criticizing Bostock in the months before his termination for his involvement in the Hotlanta Softball League, a recreational sports group.

Bostock is represented by Brian Sutherland of the Atlanta firm Buckley Beal. Jack Hancock with Freeman Mathis & Gary in Forest Park, Georgia, represents Clayton County.

This 2006 photo provided by Melissa Zarda at her home in Kansas City, Mo., shows Donald Zarda, a gay skydiving instructor who died three years ago in a wingsuit accident in Switzerland. (Melissa Zarda via AP)

The Supreme Court consolidated Bostock’s case for one total hour of oral argument that will also consider the firing of Donald Zarda, a skydiving instructor who died five years ago in a BASE-jumping accident.

Zarda’s former employer Altitude Express, which does business under the name Skydive Long Island, brought the petition for certiorari here after the Second Circuit ruled 9-3 that sexual orientation is protected by the Title VII ban on sex discrimination.

Gregory Antollino, an attorney for Zarda’s estate, did not return a request for comment.

Altitude Express is represented by Saul Zabell in Bohemia, N.Y.

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