Supreme Court clashes over meaning of ‘sex’ in LGBT discrimination cases – CNBC

The justices of the Supreme Court clashed over the meaning of “sex” in heated oral arguments on Tuesday for a blockbuster set of cases concerning the rights of LGBT workers.

The court heard the cases of three LGBT employees, two gay men and a transgender woman, who claim they were fired because of their identities. At issue was the meaning of Title 7 of the Civil Rights Act, which forbids discrimination because of “sex” but does not specifically refer to gender identity or sexual orientation.

The case is among the most high profile of the term. While some states and localities have laws on the books protecting LGBT employees, those laws do not apply in about half the country. 

Arguments, which lasted two hours, concluded around noon. It was not immediately clear which side will garner a majority. A decision is expected by June of 2020. 

Several of the court’s conservatives argued that expanding Title 7 to include discrimination against LGBT workers would be better handled by Congress. Attorneys for both sides have acknowledged that at the time the law was passed in 1964, its drafters likely did not envision that it would apply to gay or transgender individuals. 

Justice Samuel Alito, one of the court’s Republican appointees, noted that Congress has had time since the law was first passed to add protections for LGBT workers, and has declined to do so. If the court said the law applied to gay workers, “we will be acting exactly like a legislature,” he said. 

“This is the type of issue that is better left to Congress than the courts,” Solicitor General Noel Francisco told the court. The question, Francisco said, wasn’t whether Congress should bar discrimination against LGBT employees, but rather whether is had actually done so. 

But Justice Neil Gorsuch, President Donald Trump’s first appointee to the bench, suggested with his questioning that he was sympathetic to the argument that the word “sex” necessarily includes sexual orientation as well as gender identity. 

“Let’s do truth serum, okay? Wouldn’t the employer maybe say [the firing is] because this person was a man who liked other men? And isn’t that first part sex?” Gorsuch asked of Jeffrey Harris, an attorney for Clayton County, Georgia, which was accused of firing a county employee who is gay.

“Your honor, I think in common parlance, we would call that a same-sex attraction,” Harris responded. 

Attorneys for the employees fended off the idea that their argument required an “update” to Title 7. David Cole, an ACLU attorney who argued on behalf of a funeral director who was fired after announcing her intention to present as a woman, said that “we are not asking you to redefine sex.”

Cole said that even under the narrowest possible definition, firing someone for being transgender is sex discrimination. He said that his client would not have been fired had she been assigned the female sex at birth. 

In an exchange with Cole, Gorsuch said “I’m with you” on the text of the statute, adding that it it was “really close.” But he expressed reservations about other elements of the case, warning of “massive social upheaval” should the Supreme Court rule for Cole’s client. “That’s an essentially legislative decision,” he added.  

Hypothetical questions about what the court’s eventual decision will mean for society featured prominently, particularly as it pertained to gender-specific restrooms and sports programs. John Bursch, an attorney for the funeral home, R.G. & G.R. Harris Funeral Homes, warned that transgender women will work at rape shelters for women. 

“He’s wrong to say that this case isn’t about showers and overnight facilities and sports,” Bursch said of Cole.

Justice Brett Kavanaugh, who is believed to be a possible swing vote in the matter, did not ask any questions that indicated how he may vote. 

It is not always possible to determine how justices will vote based on the questions they ask during oral argument. 

This is breaking news. Check back for updates.

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