CIVIL RIGHTS
At Supreme Court, Glimmer of Hope
Crucial fi fth vote possible after employment discrimination arguments
BY MATTHEW SKINNER
Intense exchanges about the meaning
of a 55-year-old civil rights statute
in the context of the modern realities
of homophobia and transphobia in the
workplace, with plenty of bathroom hysteria
sprinkled in, marked a dramatic morning of
arguments at the Supreme Court of the United
States on Tuesday.
The Supreme Court accepted the three cases
argued this week for review this past April.
Two cases involving gay men fi red by their
employers, Bostock v. Clayton County, Georgia,
and Altitude Express v. Zarda, were consolidated
for an hour of argument over whether
discrimination based on sexual orientation is
prohibited by the provision in Title VII of the
Civil Rights Act of 1964 that outlaws discrimination
“because of sex.”
The second hour was devoted to R.G. & G.R.
Harris Funeral Homes v. EEOC, involving a
transgender Michigan woman, Aimee Stephens,
invoking the same statutory language against
her employer. She was dismissed from her job
as a funeral director after she announced plans
to transition.
Stephens and Gerald Bostock were in the
courtroom for the arguments. Donald Zarda
tragically died several years ago in a skydiving
accident, but his sister and former partner
have continued to pursue the litigation for him
as co-executors of his estate. Zarda’s case has
stretched for nearly a decade now.
Liberal Justices Ruth Bader Ginsburg, Stephen
Breyer, Sonia Sotomayor, and Elena Kagan
all indicated with their aggressive questioning
that they are solidly prepared to rule in favor of
the plaintiffs in the three cases, although Sotomayor
surprised — and disappointed — many
with her series of questions about bathrooms.
Despite being treated twice this year for cancer,
Ginsburg was back in top form, looking
and sounding healthy as she easily dispatched
the facts and outcomes of decades-old obscure
gender discrimination cases.
Conservative stalwarts Chief Justice John
Roberts and Justice Neil Gorsuch, meanwhile,
left the impression that they actually might follow
the textualist brick road to the Emerald
City of an inclusive Title VII interpretation covering
discrimination based on sexual orientation
and gender identity.
In 2015 during the argument for Obergefell
v. Hodges, the marriage equality case, Roberts
himself memorably asked why it isn’t “a
straightforward question of sexual discrimination”
if “Sue loves Joe and Tom loves Joe,” but
“Sue can marry him and Tom can’t.”
Activists carry a banner made by the late Gilbert Baker, creator of the Rainbow Flag, in front of the US Capitol as, blocks away, the Supreme
Court was hearing arguments in three cases involving anti-gay and anti-trangender discrimination.
DONNA ACETO
William Moore, Donald Zarda’s surviving spouse, with Donald’s
sister, Melissa Zarda, who are representing the late Donald in his
lawsuit, and Aimee Stephens (seated), the plaintiff in the case
against Harris Funeral Homes.
Pamela Karlan, a nationally-renowned academic
and co-director of the Stanford Law
School Supreme Court Litigation Clinic, argued
on behalf of the two fi red gay men in the fi rst
hour. Karlan, an out bisexual woman with a
female partner, has a legendary LGBTQ rights
pedigree at the Supreme Court; she clerked for
the late Justice Harry Blackmun in 1986 and
he later acknowledged her as the author of his
dissent in Bowers v. Hardwick, when a bare
majority of the court viciously upheld the constitutionality
of a Georgia sodomy law. She also
was on Edie Windsor’s legal team in 2013 in the
case that ultimately brought down the federal
DONNA ACETO
Defense of Marriage Act.
Karlan was brimming with confi dence and
backed it up with plenty of legal fi repower and
wit. Early on in her allotted time, she even
boldly insisted that the justices stay focused
on the cases involving gay plaintiffs when they
repeatedly creeped into questions about transgender
people and bathrooms almost immediately
during her time.
Her opposing counterpart, Jeffrey Harris,
faced a hostile fi ring line, with even Justice
Gorsuch pushing him to explain “in what linguistic
formulation would one say that sex,
biological gender, has nothing to do with what
happened in this case?”
David Cole, the national legal director of the
American Civil Liberties Union, handled argument
on behalf of Aimee Stephens. Some
prominent members of the transgender legal
community have called into question why a
transgender attorney could not have been given
the opportunity to seize this groundbreaking
moment at the Supreme Court lectern, but in
any event, Cole was also strong, particularly
during his uninterrupted closing rebuttal
where he directly responded to the repeated
suggestions that only Congress could explicitly
add sexual orientation and gender identity
to the statute. He declared that “interpreting
a statute is not depriving the democratic process;
it is doing what the court is supposed to
do within the democratic process.”
The arguments also laid bare the desperate
scare tactics of the so-called Alliance Defending
Freedom in these cases; a parade of horribles
➤ SUPREME COURT, continued on p.5
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