The U.S. Supreme Court will begin its new term in October with a case that touches a political hot button.
A contentious issue that has been percolating in the lower federal courts for several years now will be the subject of oral arguments Oct. 8 before the U.S. Supreme Court, setting the stage for emotional outpourings similar those surrounding same-sex marriage.
“The Trump Administration Asked the Supreme Court to Legalize Firing Workers Simply for Being Gay.” That’s how BuzzFeed, striking an emotional pose, put it.
A more accurate description of the issue is whether a 1964 civil rights law that bars discrimination based on an individual’s sex covers both a person’s sexual preference and/or a person’s transgender status.
The 7th Circuit Court of Appeals in Chicago ruled in 2017 that the 1964 law protects against sex preference discrimination, a decision allowing Kim Hively, a lesbian who claimed she was unlawfully denied a full-time teaching position, to sue Indiana’s Ivy Tech Community College.
The 2nd Circuit Court of Appeals issued a similar ruling to that of the 7th Circuit. But the 11th Circuit rejected arguments that the 1964 law should be re-interpreted to cover sexual preference discrimination, asserting that it’s the job of Congress, if it chooses to do so, to write such protections into law.
The transgender case arises out of Michigan, where a male employee of a funeral home became Aimee Stephens and insisted on wearing women’s clothes to work. The funeral home owners subsequently fired Stephens, who sued under the 1964 law and won.
Conservative and liberal justices — some conservatives for and some liberals against — have been all over the lot in the case. That makes it difficult to predict with confidence which way the nine-member high court — five conservatives and four liberals — will rule.
One thing, however, is clear. When this legislation was passed in 1964, Congress meant to protect against discrimination based on sex, not sexual preference or sexual identification. The latter two issues were not on the national radar at that time.
Retired federal appeals court Justice Richard Posner, who supported the result of the 7th Circuit decision favoring Hively but not its rationale, wrote that “we, who are judges on imposing on a half-century statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.”
Posner, however, supports rewriting the statute to cover sexual preference and identification because he thought it fit modern mores.
Other judges favoring rewriting the statute, however, have rejected Posner’s position, asserting that their view reflects a common-sense interpretation that discrimination on the basis of “sex” includes discrimination on the basis of sexual preference and identification.
For example, 7th Circuit Justice Diane Wood said Hively would not have been discriminated against if she was married to a man, making Ivy Tech’s failure to hire her as a full-time teacher an example of “paradigmatic sex discrimination.”
Dissenting Justice Diane Sykes said the issue “must be addressed by Congress.” She also wondered how Wood’s statutory interpretation would work in the real world. Suppose, Sykes wondered, Ivy Tech hired a woman to fill the position sought by Hively, asking how Hively could credibly argue that she is a victim of sex discrimination if the person hired for the position she sought also is a female.
As if often the case in high court arguments, these issues are more complicated than those emotionally invested in the outcome realize.
This case is perceived by some as another in a series of potentially ground-breaking cases for the LGBTQ lobby. To others, it’s simply a question of whether, in our system, the courts or the Congress write controversial legislation extending legal protections to specific groups of people.