WASHINGTON—The Supreme Court spent a tense two hours on Tuesday weighing whether the nation’s bedrock civil-rights law forbids employers from discriminating against gay or transgender employees.
The issues arrived in separate cases, but they boiled down to the same question: Does the Civil Rights Act of 1964, whose Title VII outlaws workplace discrimination based on sex, nevertheless permit employers to fire individuals because they are gay or transgender?
Justice Neil Gorsuch summed up the conundrum for the court’s conservative majority: The statute’s text, using the broad term “sex,” made for a “really close” call that could well point in the employees’ favor, he said. But was following that path to protect LGBT employees—something lawmakers in 1964 hardly would have expected—worth “the massive social upheaval that would be entailed?”
The outcome will depend on whether any of the court’s five conservatives find that the concepts of sexual orientation or gender identity cannot logically be segregated from the ban on sex discrimination. The four liberal justices made clear they considered the answer obvious.
“”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,” Associate Justice Sonia Sotomayor said, calling it “invidious behavior.” “At what point does a court say, Congress spoke about this?” she said, because “it’s very clear that what’s happening fits those words.”
Over the past two decades, Justice Anthony Kennedy, a maverick conservative, joined with liberal justices to deliver a series of decisions expanding gay rights over conservative dissents. His successor, Justice Brett Kavanaugh, has no clear record on the issue and said little Tuesday.