Supreme Court weighs whether LGBTQ workers are protected from discrimination

JUDY WOODRUFF: This is day two of the United
States Supreme Court’s new term, and already the justices are grappling with one of the
highest-stakes questions on its docket. It is about Title VII of the 1964 Civil Rights
Act, which bars employers from discriminating against employees on the basis of sex. But does Title VII also protect against discrimination
on the basis of sexual orientation or gender identity? William Brangham starts there. WILLIAM BRANGHAM: The demonstrations outside
the Supreme Court today reflect just how high-stakes these cases are. Several were argued this morning. They’re the most significant LGBTQ rights
cases since 2015, when the court legalized same-sex marriage nationwide. Gerald Bostock is a welfare case worker from
Georgia. He initiated one of the lawsuits that made
it to the court today. He said he was fired because he’s gay. GERALD BOSTOCK, Plaintiff: We’re talking about
millions and millions of people who go to work every day fearful for being fired for
who they are, how they identify, and who they love. And that’s wrong. WILLIAM BRANGHAM: Another of the lawsuits
was initiated by Aimee Stephens. She is transgender and said she was fired
from a Michigan funeral home after beginning her transition. But a lawyer representing the funeral home
says Title VII doesn’t apply here. JOHN BURSCH, Attorney: Americans should be
able to rely on what the law says. First, it was unelected government officials. Now it is the ACLU that seeks to redefine
sex in federal law, a change that Congress has repeatedly rejected. WILLIAM BRANGHAM: Inside the courtroom today,
as always, was Marcia Coyle of “The National Law Journal,” and she joins me now. Marcia, welcome back, as always. MARCIA COYLE, “The National Law Journal”:
Thank you. WILLIAM BRANGHAM: The argument today is whether
Title VII, which bans job discrimination on the basis of sex, could also include protecting
sexual orientation, right? Was that the argument today? MARCIA COYLE: That’s right, William. Does that language, sex, encompass discrimination
on the basis of sexual orientation and gender identity? WILLIAM BRANGHAM: And as we heard from one
of the plaintiffs, who basically argued, I’m was fired because I’m gay, and thus, under
Title VII, I should be protected. MARCIA COYLE: Right. And the other plaintiff you heard from, Aimee
Stephens, because she was — she claimed she was fired because of her gender identity,
that she had transitioned from male to female. And today, William, there were two hours of
arguments. The court had consolidated two cases involving
sexual orientation for one hour, and then the case on gender identity for a second hour. And the arguments were fascinating, fast,
quick, path-breaking. We heard for the first time words like transgender,
cisgender, even… WILLIAM BRANGHAM: Is that right? That’s the first time those have been uttered
in the Supreme Court? MARCIA COYLE: First time I have ever heard
them. WILLIAM BRANGHAM: Interesting. MARCIA COYLE: And I have been covering the
court a long time. The LGBTQ community is arguing that, because
of sex, that this is a plain statutory interpretation case, that the text of Title VII, because
of sex, applies. And the best way to explain it was probably
Pam Karlan, who argued for those plaintiffs today on sexual orientation, in which she
said, if an employer fires a male employer — employee because he dates men, but doesn’t
fire a female employee who dates men, then that employer has discriminated against the
man because the employer’s treating that man worse than the female employee. And it’s because of sex, because the firing
is based on the employee, the male employee’s failure to conform to the employer’s expectation
of the male sex’s behavior. And it’s very similar in terms of the gender
identity case, too. Aimee Stephens, they say, was fired because
of sex. She was fired because of her biological sex
at birth. If she had had a different sex, female, she
wouldn’t have been treated — or she would have been treated differently. She wouldn’t have been fired. So — and, also, in her case, there’s an additional
element. She claims she was fired because she didn’t
conform to the funeral home owner’s expectations of how men and women should look, act, and
behave. And that’s illegal stereotyping under Title
VII. So those are the arguments on one side. The Trump administration and the employer
lawyers are saying, no, the text of Title VII supports us, too. In 1964, when Congress enacted the law, sex
was biological, male and female. WILLIAM BRANGHAM: And only those two. MARCIA COYLE: Absolutely. Sexual orientation and gender identity, they
say, are independent, distinct traits or characteristics; they’re not covered by the language of Title
VII. WILLIAM BRANGHAM: And how did the justices
seem to respond to this idea of sort of broadening the definition of Title VII? MARCIA COYLE: Well, I think there were three
sort of considerations, first on the meaning of the language, the text. You had Justice Gorsuch, for example. He said he thought the textual evidence here
was very, very close, but he didn’t say close to what. So we’re not quite sure where he is, whereas
Justice Kagan said she thought it was quite clear and that Title VII is very simple. It says because of sex, and if you have been
discriminated for your sex, then Title VII is there to protect you against that discrimination. The second concern seemed to be the role of
the court itself. Justice Alito said to the lawyers for the
LGBTQ plaintiffs, if we rule for you, some people are going to say, this is a big policy
issue. This is something Congress should be dealing
with. Congress has considered or has failed to consider
this, despite requests over a number of years. If we rule, we’re acting like a legislature. But then you had Justice Sotomayor saying
at a later point, sort of in response to that, at what point does a court step in to stop
invidious discrimination? And, finally, I think, the court was concerned
about what might be the impact if they do rule for the LGBTQ community. There were a lot of hypotheticals about, well,
what’s going to happen to sex-segregated bathrooms, sex-segregated athletic teams, dress codes? And the lawyers for the plaintiffs here, the
victims here, seemed to be telling the justices, look, that’s not in these cases right now. We’re talking about the workplace, Title VII. Those cases may come to you later, no matter
how you rule, but, right now, we’re talking about straight statutory interpretation. WILLIAM BRANGHAM: And depending on how the
justices rule on this, I mean, this could impact a huge number of employees across the
country. MARCIA COYLE: This is incredibly important
to these workers. I think fewer than half of the states have
in their own laws workplace protections for LGBTQ workers. And so that leaves an enormous — I think
almost eight million employees without protection from workplace discrimination. So, yes, the stakes are huge. WILLIAM BRANGHAM: So this is obviously an
enormous case. We know there is a huge term, with guns and
immigration and abortion. So I know we will be seeing a lot more of
you in the future. Marcia Coyle, as always, thank you. MARCIA COYLE: Always a pleasure.

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