Supreme Court takes up cases over LGBT rights

Supporters of the Deferred Action for Childhood Arrivals or DACA chant slogans and holds signs while joining a Labor Day rally in downtown Los Angeles on Sept. 4 2017

Today, the US Supreme Court heard three cases that will clarify the scope of federal civil rights laws - and whether workers can be fired due to their sexual orientation or gender identity. This case should never have made it to the Supreme Court in the first place.

The cases may be a landmark for LGBT rights in the USA, four years after gay marriage became legal nationwide.

Right now, it depends on where you live and work.

Gorsuch was one of three justices who were carefully under watch during oral arguments as potential swing votes on whether LGBT people is prohibited under Title VII.

The Court is now made up of five conservative Justices and four liberals.

The first two cases have been consolidated as both address the purported discrimination of gay employees.

Justice Elena Kagan, one of the court's liberal justices, said, however, that employers can not treat a man who loves other men differently than a woman who loves men.

Bostock believes he was sacked for being gay. One involves a former county child welfare services coordinator from Georgia named Gerald Bostock.

His employer, Clayton County, said his dismissal was the result of "conduct unbecoming of a county employee".

Stephens lost her job when she told Thomas Rost, owner of the Detroit-area R.G. and G.R. Harris Funeral Homes, that she had struggled with gender identity issues nearly her whole life.

She had worked as Anthony Stephens for six years before writing a letter to colleagues saying she would return to work "as my true self, Aimee Australia Stephens, in appropriate business attire".

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Two weeks after giving the letter to her boss, Stephens was sacked.

The Trump administration filed a brief back in August that sided with Harris Funeral Home.

Lawyers for the employers respond that Congress in 1964 simply did not anticipate the questions raised in these cases about the scope of Title VII and that Congress, not the courts, should be addressing these issues.

Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate based on race, color, national origin, religion and sex. The Court will decide whether the law extends to cover sexual orientation and gender identity. But two courts, in NY and Chicago, recently ruled that discrimination against LGBT people is a form of sex discrimination. The "common-sense" argument, he asserts, is that "sex is not the same as sexual orientation and not the same as gender identity".

Under President Donald Trump, the Justice Department will argue that the law should not cover gay, lesbian and transgender workers.

"I don't think Justice Kavanaugh is going to share that view, and I don't think other conservatives share that view", he adds. The Title VII cases offer a unique test of that philosophy, experts say.

"These cases will not only determine whether companies can legally fire someone just for being LGBTQ, but whether our community will face legal discrimination throughout all aspects of daily life".

He later expressed concern, however, of judicial overstep.

Justice Neil Gorsuch said in arguments Wednesday that the case seems close, but he wonders whether the justices should consider "the massive social upheaval" that might follow a ruling in favor of LGBT employees.

Indeed, while Justice Kennedy often supported protecting and expanding gay rights, he did so in a narrow fashion - often permitting exceptions and carve-outs on religious grounds, for example.

However the cases are decided, the approach Justice Kennedy took with gay rights cases - a focus on the right to individual dignity for every American - is unlikely to be seen, in a majority opinion at least, for some time. Mr. Francisco said businesses can offer their own guarantees but the court would be overstepping if it created the right on its own. In one case that was decided in the Second Circuit Court of Appeals past year, the Equal Employment Opportunity Commission (the agency that administers and enforces civil rights laws against workplace discrimination) argued that Title VII covered sexual orientation, while the U.S. Department of Justice contended that it provided no such protection. "It wouldn't be outrageous if the court ruled against the [employees] here, because there are plausible arguments for it, but I agree that it's not very obvious that [sexual orientation] wouldn't be covered". The progressive activists are naturally campaigning for a victory for their side.

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