Justice Ruth Bader Ginsburg said multiple times during arguments that most people would consider it injurious having to share a bathroom with a person of a different biological sex.
Another topic discussed was men identifying as women being allowed to participate in women’s sports. Justice Samuel Alito said that debate would be revisited in the future.
Chief Justice John Roberts noted that several states have enacted statutes forbidding discrimination against persons based on their sexual orientation or gender identity, but many of them have also carved out religious exemptions. There are currently 23 states which have enacted such anti-discrimination laws.
Solicitor General Noel Francisco said that with the Employee Non-Discrimination Act (ENDA) and related legislation, Congress and states have found religious exemptions when forbidding discrimination on basis of sexual orientation or gender identity. However, if the Supreme Court redefines existing nondiscrimination law in Title VII, he said, they would be giving “complete victory” to one side in the debate without letting the public debate the matter and settle it—as they have done already at the state level.
During Wednesday’s arguments, Justice Stephen Breyer told John Bursch, vice president of appellate advocacy for Alliance Defending Freedom who represented Harris Funeral Home, that the “other side” would argue that the Civil Rights Act was passed as part of the civil rights movement.
This entire movement, he continued, fought for protection for those who had suffered grievous discrimination; that same protection would have been extended to others who have suffered discrimination, namely individuals identifying as LGBTQ.
The court, Breyer summarized as the position counter to Bursch’s, has moved away from that interpretation over the years, towards a strict textual interpretation of sex discrimination. Breyer asked how that would not be a departure from the meaning of Title VII that it extended civil rights protections to vulnerable individuals.
Justice Sonia Sotomayor followed by asking “at what point” the court would step in to prevent “invidious discrimination” against whole groups of people, who are fired simply because of “who they are” and “merely because they’re a suspect class to some people.”
“We can't deny that homosexuals are being fired merely for being who they are and not because of religious reasons,” Sotomayor said.
“At what point does a court say, ‘Congress spoke about this, the original Congress who wrote this statute told us what they meant. They used clear words. And regardless of what others may have thought over time, it's very clear that what's happening fits those words.’ At what point do we say we have to step in?” she asked.
Justice Samuel Alito said that, although Congress enacted the Civil Rights Act in 1964 and forbade sex discrimination in the workplace, it had not updated that language to include protections for sexual orientation or gender identity.
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Congress had not yet passed the Equality Act, Alito said, which would make sexual orientation and gender identity a protected class. If the Court were to change the interpretation of Civil Rights Act to include protections for sexual orientation and gender identity, “we will be acting exactly like a legislature.”
In the Harris case, Justice Roberts asked if the funeral home’s sex-specific dress policy presented discrimination on the basis of sex, or on the basis of Mr. Stephens’ transgender status.
David Cole, representing the emplyee fired by Harris Funeral Home, said that in his case a sex-specific dress code requiring him to dress like a man when he identified as a woman was harmful. Title VII was supposed to make one’s sex “irrelevant” to their success at work, he said, but Stephens was fired for being “insufficiently masculine,” which is “sex discrimination,” he said.
Justice Neil Gorsuch acknowledged that the textual evidence of the case is “close,” and asked if a judge should consider the consequences of “massive social upheaval” of interpreting new protections in an existing law.