US Supreme Court takes on workplace gay and transgender rights

Editorial: LGBTQ+ rights in the workplace shouldn’t be up for debate

Supreme Court Title VII cases will be argued tomorrow October 8

Gerald Bostock, who says he lost his job because he is gay, stands outside his home in Atlanta on September 9, 2019. Gerald Bostock was sacked from his clerical job with Clayton County in 2013 when his boss discovered he played in a gay softball league, and Donald Zarda from his job with skydiving company Altitude Express in 2010 after a customer complained about his homosexuality following a jump in which they were suited together.

His employer, Clayton County, said his dismissal was the result of "conduct unbecoming of a county employee". "The underlying question here is an ongoing one about whether the kinds of civil rights protections put in place in the 1960s should be extended to LGBTQ+ people-that is whether LGBTQ+ people should be seen and treated as full members of their communities, and whether they deserve the protection of the government to ensure that they are".

One of the three cases concerns Aimee Stephens, a transgender woman who transitioned while working at a funeral home in MI. He said a reversal could be jarring for grieving families and that a funeral director's chief role is to blend into the background. Two weeks later, she was sacked, with the boss saying: "This is not going to work". Title VII of that landmark law makes it illegal to dismiss or discriminate against any employee "because of such individual's race, color, religion, sex, or national origin".

Around the country, some states and cities have enacted laws prohibiting employment discrimination based upon an applicant or employee's sexual orientation or gender identity. One was filed by Donald Zarda, a NY skydiving instructor who said he was sacked after telling a female customer to whom he would be strapped during a dive that he was gay, in an attempt to ease any nervousness she might be feeling.

Only 20 states and the District of Columbia prohibit discrimination in employment based on sexual orientation and gender identity. To think that we are now questioning whether employers should have a "free pass" to rely on sex stereotypes is mind-boggling, even more so at a time of growing awareness about the pervasiveness of sex discrimination at work. "Transgender people follow the rule that's associated with their gender identity". "It's not about religious freedom, it's about pushing LGBT people out of the public square".

"No one thought sexual harassment was a thing in 1964", she said.

President Donald Trump's administration has argued that Title VII does not cover sexual orientation or gender identity.

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"The question is the matter of the judicial role and modesty", Justice Gorsuch said. The Court may drop the case as it is no longer relevant, though the justices don't take kindly to a party trying to end a case after it has been accepted for review. "Because an employee's sex is a necessary element of his sexual orientation, a decision because of the latter is also a decision because of the former", Mr. Bostock's lawyers argue. Following a 90-day probationary period, Mr Celento was sacked.

Justice Neil Gorsuch acknowledged that the textual evidence of the case is "close", and asked if a judge should consider the consequences of "massive social upheaval" of interpreting new protections in an existing law. Since joining the Senate in 2009, Merkley has fought for LGBTQ+ protections at the federal level.

"They kept asking Pamela Karlan [the attorney representing two employees fired for being gay] about transgender people", he added.

The trio of cases could have significant consequences not only for the civil rights of LGBTQ Americans, but also the Supreme Court's institutional legitimacy, some argue.

The circumstances Tuesday are the court docket's first on LGBT rights since Justice Anthony Kennedy's retirement and substitute by Justice Brett Kavanaugh.

In other words, the nation's highest court will soon decide whether the federal Civil Rights Act allows employers to fire someone because they are gay or transgender.

The issue being considered by the court has important legal implications, as activists explain, saying no-one should be sacked for being gay.

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