WASHINGTON, DC – The US Supreme Court heard oral arguments on a major civil rights question: Are gay and transgender people covered by the law barring employment discrimination on the basis of sex?
As FYI: Legal developments in many countries – including the Philippines – are affected by those in the US. For instance, when the Philippines’ Supreme Court heard oral arguments on marriage equality in the country, the civil rights movement in the US was mentioned, along with other international laws/statutes pushing for LGBTQIA human rights.
At the SCOTUS, three cases are being heard.
Two of those cases, Altitude Express Inc. v. Zarda and Bostock v. Clayton County, ask whether a worker can be fired for their sexual orientation. The third, R.G. & G.R. Harris Funeral Homes v. EEOC, asks whether a worker can be fired because of their gender identity.
US currently has a federal civil rights law that somewhat touches on this – Title VII of the Civil Rights Act of 1964, which forbids employers from discriminating against employees on the basis of sex as well as gender, race, color, national origin and religion.
However, the text of the law bans only “sex” discrimination, not specifically stating discrimination based on a worker’s “sexual orientation” or “gender identity”.
It is worth noting, therefore, that in the US, 29 states still do not have a law protecting the rights of LGBTQIA workers from being fired solely because of their SOGIE.
The cases now at SCOTUS, therefore, ask whether concepts like sexual orientation and gender identity – both tightly bound to the concept of sex (meaning gender, not sexual intercourse) – should also be included under its grasp.
Thus far, the members of SCOTUS are divided.
The top court’s liberal members are expected to vote with the plaintiffs and the argument that LGBTQIA workers should be covered by Title VII of the Civil Rights Act.
Associate Justice Sonia Sotomayor was among those who already noted that firing LGBTQIA people not because they under-performed but because of who they are may fall under the statutory ban on sex discrimination. “We can’t deny that homosexuals are being fired merely for being who they are and not because of religious reasons, not because they are performing their jobs poorly,” Sotomayor said, calling it “invidious behavior.”
For Associate Justice Elena Kagan, Title VII prohibits employment discrimination that occurs “because of (an employee’s) race, color, religion, sex, or national origin.” The language used here is broad and it suggests that a simple test should apply in sex discrimination cases. A plaintiff in such a case should prevail unless they would have experienced the exact same treatment if they “were a different sex.”
For Associate Justice Ruth Bader Ginsburg, interpretations of Title Vii had changed in the past. Since this law was enacted, the SCOTUS has held that it applied to discrimination based on sex stereotypes, as well as same-sex harassment. And though these areas were presumably not on the minds of the legislators who voted for it, “no one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in 1964. It wasn’t until a book was written in the middle 1970s bringing that out,” Ginsburg said. “And now we say, ’Of course, harassing someone, subjecting her to terms and conditions of employment she would not encounter if she were a male, that is sex discrimination. But it wasn’t recognized.”
But conservative justices – including those appointed by US Pres. Donald Trump, who may continuously claim to be pro-LGBTQIA but has been attacking LGBTQIA human rights in the country by implementing policies not beneficial to the LGBTQIA community (such as banning transgender people from serving in the military) – are concerned of “massive social upheaval” if the court will rule in favor of LGBTQIA workers, instead of allowing Congress to legislate on the subject.
Decisions from the nine justices of America’s highest court are due by next June. – WITH SUZETTE MAGALLANES-PADOR