U.S. Supreme Court weighs major gay, transgender employment rights case

Darnell Taylor
October 8, 2019

The Supreme Court takes on one of its most consequential issues of the term Tuesday, considering whether federal discrimination laws protect gay and transgender workers.

For 50 years, courts read the 1964 law to mean only that women could not be treated worse than men, and vice versa, not that discrimination on the basis of sex included LGBTQ individuals.

"The ordinary meaning of "sex" is biologically male or female; it does not include sexual orientation", Solicitor General Noel J. Francisco said in a brief to the court in the Bostock and Zarda cases, which have been combined. USA appeals courts in NY and Chicago similarly found the law applies to gay and lesbian workers, while the Cincinnati appeals court said it applies to transgender people.

Kennedy was a voice for gay rights and the author of the landmark ruling in 2015 that made same-sex marriage legal throughout the United States.

The Trump administration has changed course from the Obama administration and now supports the employers in arguing that the civil rights law's Title 7 does not prohibit discrimination because of sexual orientation or transgender status.

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The second case is of a social worker from Georgia who was sacked shortly after joining a gay sports team. Trump Barry was being investigated by a court council for misconduct before she retired in April. The ACLU's John Knight will argue the gender identity case.

At present, federal anti-discrimination laws do not protect gays, lesbians or transgender workers.

In 2010, Donald Zarda was sacked from his job as a sky-diving instructor in NY after jokingly assuring a woman customer she had nothing to fear from being strapped to him in the air because he was gay.

California and 21 other states forbid discrimination based on sexual orientation, and several other states have such protections for public employees. It asserts that a transgender woman can be lawfully fired if an employer says she is not a "real" woman, and that a gay man can lose a job for not conforming to an employer's view about "real" men. The current chief justice, Elizabeth Walker, was also impeached by the House, but was cleared at her Senate trial, which took place before the acting justices' ruling in Workman's case. It could give the Supreme Court potentially an off ramp to avoid deciding whether or not the Louisiana law itself is constitutional and what happens in Louisiana if for example this law is upheld.

Judges would be banned from owning or trading individual stocks, Warren said, to eliminate even the appearance of impropriety.

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