Windy City Media Group Frontpage News
Celebrating 30 Years of Gay Lesbian Bisexual and Trans News
home search facebook twitter join
Gay News Sponsor Windy City Times 2020-02-19
About WCMG Publications News Index  Entertainment Features Bars & Clubs Calendar Videos Advertisers OUT! Guide    Marriage



by Lisa Keen, Keen News Service

facebook twitter pin it google +1 reddit email

WASHINGTON, DC—It was the second day of the court's 2019-20 session, and the two hours of arguments Tuesday, October 8, were split between cases involving discrimination based on sexual orientation and discrimination based on transgender status. But very early on in the discussion around the sexual orientation cases, the justices veered off into territory involving bathrooms and locker rooms and even the court's own dress code.

"The arguments are very similar in both of the cases and the justices themselves seemed a little confused about which case they were discussing," said Jon Davidson, chief counsel at Freedom for All Americans and former legal director of Lambda Legal.

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

They did it so much, Karlan took the liberty of reminding the justices she was there to argue the sexual orientation issue.

But Justice Sonia Sotomayor pushed back, noting that the "big issue right now raging [in] the country is bathroom usage, same-sex bathroom usage."

Ultimately, over the course of the two hours, the justices seemed to meld the different issues, even though they will eventually address them in two different opinions.

The three cases before the court Tuesday are what most Supreme Court observers consider "the most watched" cases of the session. Regardless of how the justices decide the cases, the consequences will almost certainly be profound for all LGBT people.

Only one law is at issue: Title VII of the Civil Rights Act of 1964. That section prohibits employers who have more than 15 employees from discriminating "because of sex." The question is how to interpret "sex." Does it encompass sexual orientation and transgender status or does it mean only male or female.

"When an employer fires a male employee for dating men but does not fire a female employee for dating men, he violates Title VII," said Karlan. He does so, she said, because the employer "treats that man worse than women who do the same thing. And that discrimination is because of sex."

But attorneys on the other side of the issue, including Solicitor General Noel Francisco, said it's not. He argued that the employer who fires someone for being gay would do so regardless of whether that employee was a man or a woman. So it's not sex discrimination, it's sexual orientation discrimination. That's different, he said, and that was not on the minds of members of Congress when they passed the Civil Rights Act in 1964.

Justice Ruth Bader Ginsburg prompted Karlan to address that argument, noting that, in 1964, same-sex relations were a "criminal offense," that the American Psychiatric Association considered being gay a "mental illness."

"This court has recognized again and again forms of sex discrimination that were not in Congress's contemplation in 1964," responded Karlan. "In 1964, those were the days of "Mad Men." She was referring to the popular television series about people in marketing during the 1950s, a series that prompted much discussion around sex-based expectations. "Most courts didn't find sexual harassment to be actionable" in 1964, she said, until the Supreme Court eventually ruled that Title VII did include sexual harassment.

The two cases involving sexual orientation Tuesday included one is from New York and the Second Circuit U.S. Court of Appeals and one from Georgia and the 11th Circuit. Both involved gay men who were fired after acknowledging they were gay. The Second Circuit, ruling in Altitude Express v. Zarda, said the employer's firing of parachute instructor Daniel Zarda for acknowledging he was gay did violate Title VII. But the 11th Circuit dismissed Gerald Bostock's lawsuit, Bostock v. Clayton County, saying the court was bound to conform to its ruling in an earlier case, a ruling that Title VII does not cover sexual orientation.

The third case, and the subject of the second hour of argument, is Harris Funeral v. EEOC. It marks the first time the U.S. Supreme Court has taken up the issue of whether a transgender person is protected by Title VII.

The Harris case, from Michigan and the Sixth Circuit, involves a funeral director, Aimee Stephens, who worked for years identifying as a man because that was the gender assigned to her on her birth certificate. But Stephens sincerely believed, since a young age, that her gender is female. When she got the courage to live true to her gender identity, she told her boss she would begin transitioning to live life as a woman. Her employer fired her. Stephens filed a complaint with the U.S. Equal Employment Opportunity Commission ( EEOC ), which ruled that Harris Funeral's action violated Title VII, and the Sixth Circuit agreed.

In an opinion piece for The Washington Post October 6, attorney Chase Strangio, who is part of Stephens' ACLU legal team, wrote that the October 8 argument in Harris would be breaking new ground.

"Tuesday may feature the first time the word 'transgender' is spoken during oral arguments in the highest court in the United States. And when the justices look out from the bench and see my co-counsel and me at counsel table," he wrote, "it may be the first time they have looked at transgender attorneys defending our own existence before their powerful bench."

Interestingly, when ACLU attorney David Cole tried to make the court aware that transgender attorneys were in the courtroom, there was some resistance.

"I say that recognizing that transgender people have a right to exist in the workplace and not be turned away because of who they are does not end [with] dress codes or restrooms," said Cole. "There are transgender lawyers in this courtroom today, and the…."

"Of course there are," interrupted Justice Neil Gorsuch gruffly. "That's not the question, Mr. Cole."

Gorsuch was trying to get Cole to address a specific concern, one voiced by a dissenting judge in the appeals court, that covering transgender status under Title VII would cause a "drastic change in this country," covering things such as bathrooms and dress codes.

"Nobody is questioning…the legitimacy of the claims [made by the employee] and the importance of them," said Gorsuch. "The question is about judicial interpretation.

Cole said he was "not asking you to apply any meaning of sex other than the one that everybody agrees on as of 1964….We're not asking you to rewrite it."

"I agree with that," said Gorsuch. "The question is...when a case is really close, really close, on the textual evidence, and assume for the moment I'm with you on the textual evidence —it's close, okay? …At the end of the day, should [the court] take into consideration the massive social upheaval that would be entailed in such a decision and the possibility that Congress didn't think about it and that that is more appropriately a legislative rather than a judicial function?"

Cole said courts have already been venturing into these waters.

"Federal courts of appeals have been recognizing that discrimination against transgender people is sex discrimination for 20 years," he said. "There's been no upheaval.

"As I was saying, there are transgender male lawyers in this courtroom following the [Supreme Court's] male dress code and going to the men's room. And the Court's dress code and sex-segregated restrooms have not fallen. So the notion that this is going to be a huge upheaval," said Cole, "we haven't seen that upheaval for 20 years."

Optimism awaits a decision

Davidson said he found the exchange between Gorsuch and Cole reason for optimism.

"Gorsuch, who could also be the deciding vote here, seemed to say the employees had the better sense of the literal argument —is this because of sex," said Davidson. And Gorsuch's concern about "massive social upheaval" has a "very easy answer."

"If Congress doesn't like how the court resolves this, Congress can always amend the statute," said Davidson.

"To the extent all these concerns were raised about the bathrooms and the locker rooms and women's sports and dress codes," said Davidson, "Congress could always amend the statute…and say what they think the rules should be about each of those things, and about religious exemptions."

"So the only question here is, 'Is it discrimination because of sex to fire someone because they are lesbian, gay, bisexual or transgender," said Davidson. "We seemed to have a majority that agreed that it is, but some of them were troubled about what that would mean."

It typically takes several months for the Supreme Court to issue an opinion, once a case is argued. Even more typically, with LGBT-related matters, the court tends to issue its opinions in late June.

Only 21 states prohibit discrimination in employment based on sexual orientation and transgender identity. Legislation has been pending in Congress for more than four decades, attempting to establish protections nationwide; but, the legislation —which has taken on different forms—has not cleared Congress.

© 2019 Keen News Service. All rights reserved.

facebook twitter pin it google +1 reddit email

Windy City Media Group does not approve or necessarily agree with the views posted below.
Please do not post letters to the editor here. Please also be civil in your dialogue.
If you need to be mean, just know that the longer you stay on this page, the more you help us.


Gay News

ELECTIONS 2020 Report: 378K trans citizens could encounter voting hurdles 2020-02-27 - A new report by the Williams Institute at UCLA School of Law says that an estimated 965,350 transgender adults will be eligible to ...

Gay News

Advocates support health-education bill for public schools 2020-02-26 - At a press conference, Wednesday, Feb. 26, a group of advocates announce their support for the Responsible Education for Adolescent and Children's Health ...

Gay News

ELECTIONS 2020 JUDICIAL Transgender attorney Jill Rose Quinn on judicial race, making history 2020-02-25 - Since 1997, Jill Rose Quinn has had her own private law practice working on family and criminal law, LGBTQ issues, financial matters and ...

Gay News

ELECTIONS 2020 JUDICIAL Associate Judge Mary Cay Marubio on race, reasons 2020-02-25 - In 2016, Mary Cay Marubio was appointed as a Cook County Associate Judge and is currently running for the O'Brien vacancy (10th Subcircuit) ...

Gay News

Victory Fund hosts fundraiser for endorsed Illinois LGBTQ candidates 2020-02-25 - A Victory Fund hosted fundraiser for the organization's endorsed candidates—Cook County Circuit Court Clerk candidate Jacob Meister; state representative candidates Yoni Pizer ( ...

Gay News

WORLD Bollywood film, UK employers, assault, Rainbow Railroad 2020-02-25 - The India film capital of Bollywood is releasing its first major romantic comedy with a lead gay character, noted. Shubh Mangal Zyada ...

Gay News

NATIONAL Blackmailer killed, Anderson Cooper, Apple CEO, church settlement 2020-02-25 - After posting a Facebook Live video in which she threatened to out a man if he didn't pay her $5,000, 40-year-old Indianapolis woman ...

Gay News

HRC releases 2020 presidential survey, candidate responses 2020-02-24 - On Feb. 24, the Human Rights Campaign ( HRC ) released its 2020 presidential questionnaire and responses from the leading Democratic candidates. The ...

Gay News

ELECTIONS 2020 Feigenholtz endorses Pizer to succeed her 2020-02-24 - State Sen. Sara Feigenholtz endorsed Yoni Pizer in the Democratic primary election for the House seat she held for 24 years, calling Pizer ...

Gay News

ELECTIONS 2020 JUDICIAL (FLEMING VAC.) Trowbridge on race, lessons, LGBT judges 2020-02-24 - Brad Trowbridge has been an attorney for 20 years specializing in a wide swath of family law issues including, but not limited to, ...


Copyright © 2020 Windy City Media Group. All rights reserved.
Reprint by permission only. PDFs for back issues are downloadable from
our online archives. Single copies of back issues in print form are
available for $4 per issue, older than one month for $6 if available,
by check to the mailing address listed below.

Return postage must accompany all manuscripts, drawings, and
photographs submitted if they are to be returned, and no
responsibility may be assumed for unsolicited materials.
All rights to letters, art and photos sent to Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago
Gay and Lesbian News and Feature Publication) will be treated
as unconditionally assigned for publication purposes and as such,
subject to editing and comment. The opinions expressed by the
columnists, cartoonists, letter writers, and commentators are
their own and do not necessarily reflect the position of Nightspots
(Chicago GLBT Nightlife News) and Windy City Times (a Chicago Gay,
Lesbian, Bisexual and Transegender News and Feature Publication).

The appearance of a name, image or photo of a person or group in
Nightspots (Chicago GLBT Nightlife News) and Windy City Times
(a Chicago Gay, Lesbian, Bisexual and Transgender News and Feature
Publication) does not indicate the sexual orientation of such
individuals or groups. While we encourage readers to support the
advertisers who make this newspaper possible, Nightspots (Chicago
GLBT Nightlife News) and Windy City Times (a Chicago Gay, Lesbian
News and Feature Publication) cannot accept responsibility for
any advertising claims or promotions.







About WCMG Publications News Index  Entertainment Features Bars & Clubs Calendar Videos Advertisers OUT! Guide    Marriage

About WCMG      Contact Us      Online Front  Page      Windy City  Times      Nightspots      OUT! Guide     
Identity      BLACKlines      En La Vida      Archives      Subscriptions      Distribution      Windy City Queercast     
Queercast Archives      Advertising  Rates      Deadlines      Advanced Search     
Press  Releases      Event Photos      Join WCMG  Email List      Email Blast     
Upcoming Events      Todays Events      Ongoing Events      Post an Event      Bar Guide      Community Groups      In Memoriam      Outguide Categories      Outguide Advertisers      Search Outguide      Travel      Dining Out      Blogs      Spotlight  Video     
Classifieds      Real Estate      Place a  Classified     

Windy City Media Group publishes Windy City Times,
The Bi-Weekly Voice of the Gay, Lesbian, Bisexual and Trans Community.
5315 N. Clark St. #192, Chicago, IL 60640-2113 • PH (773) 871-7610 • FAX (773) 871-7609.