Even Some Republicans Are Urging The Supreme Court To Protect LGBTQ Employees

Should employers be allowed to fire someone because of their sexual orientation or gender identity?

The Supreme Court is set to answer that question in a trio of cases scheduled for oral arguments in October: Altitude Express Inc. v. Zarda, Bostock v. Clayton County, Ga., and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.

This will be the first major gay rights case decided by the court without the influential swing vote of now-retired Justice Anthony Kennedy. It’s unclear if the new conservative-majority court will be amenable to protecting the rights of gay, lesbian and transgender workers. 

Nearly 50 individuals and groups, amounting to thousands of people, are expected to file “friend of the court,” or amicus briefs, on Wednesday, expressing their support for LGBTQ rights, according to an announcement from the American Civil Liberties Union , which is involved in two of the three cases. 

The idea that the court would actually issue a ruling that allows employers to fire LGBTQ workers seems almost impossible to believe in 2019, years after the court legalized gay marriage.

“I think it would shock the American public,” said Jenny Yang, the former chair of the EEOC, the federal agency that handles employment discrimination charges. Yang, who served during the Obama administration, signed on to a brief, along with several other former government officials from her old agency, as well as other former federal officers.

The court should consider the EEOC’s careful analysis of gay rights cases, Yang said. The agency has already established that federal civil rights law protects LGBTQ workers from discrimination.

Another notable brief comes from a group of prominent Republicans and conservatives, including former chair of the Republican National Committee Kenneth Mehlman, who served in the George W. Bush White House and came out as gay in 2010. He’s joined by several former Bush staffers, retired Republican congress members, and prominent conservatives like former eBay and HP CEO Meg Whitman. 

“Members of the Republican Party should support people’s ability to reap the rewards of their labor — to earn a fair and honest living, and to work where they want to work,” Mehlman said in a statement released Wednesday. “We are the party of economic freedom, personal liberty and limited governmental interference, and treating LGBTQ workers fairly is consistent with our principles.”

Their brief directly appeals to the conservatives on the court by arguing that the plain text of Title VII of the federal civil rights law, which forbids firing workers on the basis of sex, easily applies to the protection of LGBTQ workers.

The Trump administration has already made clear where it stands on these issues. In a court filing in one of the cases in July 2017, the Department of Justice argued that it is OK to fire someone on the basis of their sexual orientation.

Yang was particularly concerned with the Trump administration’s stance.

“My colleagues and I at the EEOC and other former federal government officials are very concerned that the Trump administration will be asking the Supreme Court to take away federal protections that should and do exist for LGBT people,” she said.

The three cases going up before the Supreme Court in October involve the dismissal of two gay men and a trans woman.

In Bostock,  a gay man who worked as a child welfare coordinator in Clayton County, Georgia, was fired in 2013 for “conduct unbecoming of its employees” after he started participating in a gay softball league. His suit was thrown out by the district court, a decision that was upheld on appeal to the circuit court in Georgia.

In the Zarda case, a Long Island skydiving instructor, Don Zarda, was fired in 2010 after telling a client he was gay. And last year, the circuit court in New York ruled that Zarda’s firing was discriminatory.

Sadly, just a few years after he was fired, Zarda died in a base jumping accident. But his sister and former partner are now carrying on the case on his behalf.

“There was no thought of not moving forward. It was owed to him. Donny would call and talk about this case,” Melissa Zarda told HuffPost earlier this year.

“He’d be crying on the phone. This case was so important to him we wouldn’t have thought for a second to drop it,” she said, adding that the firing “devastated him. His job was his passion in life.”

The Court is also considering R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, in which a transgender woman, Aimee Stephens, was fired from her job at a funeral home in Michigan in 2013 after she announced she would be living her life as a woman. 

Previously, Stephens had been coming to work every day dressed as a man but, according to court filings, she could no longer live with herself that way the depression and angst in keeping herself from living her true identity were too much, she said.

The circuit court in Ohio, which considers cases from Michigan, ruled that her firing was discriminatory. 

The Department of Justice weighed in on the Zarda case in an amicus brief in 2017, arguing that sexual orientation isn’t part of Title VII and pointing out that Congress has never updated the law to expressly include LGBTQ people.

The DOJ also argued that if gay men and gay women are both treated similarly, discrimination is not possible. “Of course, if an employer fired only gay men but not gay women (or vice versa), that would be prohibited by Title VII,” the brief says.

In their brief filed Wednesday, Mehlman and the conservatives confront that argument. Their brief asserts plainly that Title VII makes it illegal to discriminate against workers on the basis of sex and sexual orientation is obviously part of that.

“Would the plaintiffs below have been treated differently by their employers were they of a different sex? The answer, in each case, is ‘yes,’” write the conservatives in their brief, which emphasizes that their argument is rooted in “textualism” the idea that you interpret the law simply by what the law actually says. It’s an idea favored by the court’s conservatives.

If a man is fired because he is attracted to men, but a woman is not fired for being attracted to men the reason for the disparate treatment boils down to sex, they argue.

Other briefs are expected from 151 current members of Congress, including Senate Minority Leader Chuck Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-Calif.), the American Bar Association, at least 206 businesses including Ben & Jerry’s and Lyft, as well as hundreds of religious organizations and the American Medical Association, American Psychological Association, and other medical organizations that say discrimination at work harms the health of LGBTQ people.

“When the government argues in favor of illegal discrimination, it sends the dangerous message that trans people do not deserve the same opportunities as everyone else to support our families, pursue our dreams, and simply live our lives,” said Kris Hayashi, executive director at Transgender Law Center, which filed a brief on Wednesday that includes stories from dozens of transgender people who’ve lost their jobs because of their sexuality.

“Sanctioning discrimination against trans people pushes us to the margins and emboldens violence against us.”