LGBT rights’ advocates cheered in the streets when Justice Anthony Kennedy delivered his June, 2015 gay marriage ruling, Obergefell v. Hodges, striking down state bans on same-sex marriage to the consternation of Chief Justice John Roberts and Justice Antonin Scalia, who thought gay marriage had no place in the Constitution.
Alighting the White House in rainbow colors, President Obama called Kennedy’s 5-4 ruling a “victory for America that “made our union a little more perfect.”
However, now that Justice Brett Kavanaugh has replaced Justice Kennedy, the same gay and transgender rights advocates whose celebration alighted the White House are likely to take to the streets in protest if Chief Justice John Roberts aligns himself with his four more Conservative colleagues, Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, to deny Federal civil rights employment protection to gay and transgender people.
On April 22, after nine hours of deliberation, the Court agreed to hear the two landmark gay employment cases together, and the one transgender case separately, in its 2019 fall term beginning in October.
All three cases, to be handed down by June 30, 2020, in the thick of the Presidential primary season, will decide whether workplace sexual discrimination — banned under the 1964 Civil Rights Act’s Title VII provision — extends to gay and transgender employees.
The Title VII workplace provision forbids employment discrimination on the basis of “race, color, religion, sex or national origin.”
“Title VII does not specifically mention sexual orientation or transgender status but Federal appeals courts in Chicago and New York have ruled recently that gay and lesbian employees are entitled to protection from discrimination,” NPR’s Morning Edition reports.
“The Federal appeals court in Cincinnati has extended similar protections for transgender people,” according to NPR.
The big question is whether the Supreme Court will do the same, NPR reports.
Other cases are being tried throughout the Federal court system with opposing decisions, affording the Court the opportunity to resolve the issue for the nation.
Slate’s Mark Joseph Stern writes: there’s a good chance “that the Conservative justices will warp the law to exclude gender and sexual minorities from federal workplace protections.
“The result will be an unprecedented rupture in civil rights law that threatens far more than just LGBTQ people.”
Altitude Express v. Zarda
The first case the Court will argue in fall, 2019 term is Altitude Express Inc. v. Zarda, formerly decided in favor of gay employee, Donald Zarda, by the Second Circuit Court of Appeals.
A sky-diving instructor, Zarda alleges he was fired after trying to assure a young woman, who was tightly-strapped to him before taking a tandem dive, not to worry about their proximity as he was “100 percent gay.”
The client’s husband called Altitude Express to complain that Zarda had acted inappropriately.
Zarda died in a skydiving accident in 2014.
However, Chief Justice Robert Katzmann of the Second Circuit wrote that Zarda’s partner and estate should pursue the lawsuit, according to Wall Street Journal reporters Jess Bravin and Brent Kendall.
The Second Circuit ruled 10-3 that it was reversing its prior decision that Title VII didn’t cover sexual orientation because “legal doctrine evolves,” Katzmann wrote.
Katzmann added that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”
Bostock v. Clayton County
Bostock v. Clayton County, to be argued simultaneously with Varda, was decided by the Atlanta-based Eleventh Circuit in favor of the employer.
The Eleventh Circuit found against Gerald Bostock, who was fired from his job as child-welfare services coordinator for the juvenile court system in Clayton County, Georgia.
Bostock alleges his openly-gay lifestyle led to his firing, as he played in a gay softball league.
Clayton County argues Bostock was fired for mismanaging an audit.
Discharge for Homosexuality Not Prohibited
Both employers in New York and Georgia deny they fired their gay employees because they were gay, the Wall Street Journal’s Bravin and Kendall write.
“However, both employers argue that Title VII –the employment provision of the  Civil Rights Act that prohibits discrimination based on ‘race, color, religion, sex, or national origin’—doesn’t address sexual orientation.
Last year, Bravin and Kendall note, “a three-judge panel issued a brief unsigned opinion based on a footnote from a 1979 decision by an earlier court stating that ‘discharge for homosexuality is not prohibited.”
“The footnote in turn relied on an earlier opinion siding with an insurance company that in 1969 turned down a male job applicant because of ‘effeminate characteristics.”, Bravin and Kendall conclude.
Harris Funeral Homes v. Aimee Stephens
The transgender case, Harris Funeral Homes v. Aimee Stephens, was brought to the High Court after the 6th Circuit in Cincinnati permitted the U.S Equal Employment Opportunity Commission to sue on Aimee Stephens’—formerly Anthony Stephens’– behalf.
The Washington Post’s Robert Barnes reports that last year, the 6th Circuit stated it was ‘analytically impossible’ not to take into account a person’s sex when deciding whether to fire him or her for being transgender.
“Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex,” the court ruled.
“I Will Return to Work as My True Self”
“At the end of my vacation on August 26, 2013, I will return to work as my true self, Aimee Australia Stephens, in appropriate business attire,’ Stephens wrote to colleagues,” Barnes reports.
Two weeks later, the company’s owner, Thomas Rost, fired Stephens.
Alliance Defending Freedom, a Conservative legal group, is defending Rost, Barnes reports.
Barnes notes that Alliance Defending Freedom’s senior counsel, John Bursch, said that “neither government agencies nor the courts have authority to rewrite federal law by replacing ‘sex’ with ‘gender identity’—a change with widespread consequences for everyone.”
Grounded in Precedent
Transgender law is grounded in precedent noted by Stephens’ attorneys: a 1989 Supreme Court decision stating it is illegal to discriminate against workers if they did not conform to gender stereotypes, Barnes reports.
“What happened to me was wrong,” Aimee Stephens said in a statement released by the ACLU, which represented her.
“I hope The Supreme Court will see that firing me because I’m transgender was discrimination,” Stephens said.
Stephens says she suffered immense pain and depression as a woman trapped in a man’s body and is free at last.
If Chief Justice Roberts wants his Court to evolve as an organic body to reflect the “expediency of the times”, as Justice Oliver Wendell Holmes, Jr., stated, Roberts will join a 5-4 Liberal majority to celebrate Aimee Stephens’ liberation, as the Declaration of Independence states that “life, liberty and the pursuit of happiness are inalienable rights that have been given to all humans by their creator, and which governments are created to protect.”
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