The United States Supreme Court’s fall term opens Oct. 7. They will have some important and interesting cases to decide this year.
One of the first cases, to be heard Oct. 8, involves LGBT rights. Ever since 1964, federal law (Title VII) has prohibited bias “because of sex." This means that employers with 15 or more employees may not discriminate against employees because of their sex — but what does “sex” mean?
The federal statute itself says: “The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions; and women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”
So, sex discrimination is “not limited to” pregnancy — but what else it includes must be defined by court decisions. The Equal Employment Opportunity Commission and several courts have ruled that discrimination against someone because of a transgender identity or for being gay is also included in the definition of sex discrimination under the federal law (Title VII).
Aimee Stephens was born male and began working as a funeral director and embalmer in 2007. In 2013, she presented co-workers with a letter outlining her struggles with her gender dysphoria and her intention to have gender-reassignment surgery, to be preceded by presenting herself consistent with her gender identity as a woman. The funeral home owner, Thomas Rost, fired Stephens.
The US. Court of Appeals in Cincinnati held that the funeral home violated Title VII because Stephens didn't conform to Rost’s sex stereotypes. The Supreme Court will now have to decide if gender identity discrimination is legal or illegal.
Also on Oct. 8, the Supreme Court will hear arguments in cases brought by two gay men. The first involves Gerald Bostock, a county child-welfare coordinator who claims he was fired after his superiors learned he participated in a gay softball league. The second involves Donald Zarda, who worked as a skydiving instructor and who claimed he was fired after sharing his sexual orientation with a female client to put her at ease.
In these two cases ,there were different results in the lower courts. Mr. Bostock lost his case in the Atlanta 11th Circuit Court, and Mr. Zarda won his case in the New York City 2nd Circuit Court. Now, the Supreme Court will decide which lower court was right.
According to John Bursch of Alliance Defending Freedom, a Christian organization representing the employer in the Stephens case: “What’s at stake here is whether the courts have the ability to rewrite a federal law to align with their own personal policy preferences instead of letting Congress do this by amendment.”
On the other side, James Esseks, director of the ACLU, says: “There is a lot at stake in these cases for LGBT people. The reality is that LGBT people have been relying on protections based on sex discrimination statutes for years. The question before the court is, are (the justices) going to take those protections away?”
We’ll have to wait until early next year to find out what the Supreme Court decides.
James H. Manahan is a Harvard Law School graduate and was named one of Minnesota’s Top Ten Attorneys. He now handles family law, wills and probate in the Lake County area, and does mediation everywhere. He writes a regular column on legal issues for the News-Chronicle. He can be reached at email@example.com or jamesmanahan.com.