The justices of the Supreme Court clashed over the meaning of "sex" in heated oral arguments on Tuesday for a blockbuster set of cases concerning the rights of LGBT workers.
The court heard the cases of three LGBT employees, two gay men and a transgender woman, who claim they were fired because of their identities. At issue was the meaning of Title 7 of the Civil Rights Act, which forbids discrimination because of "sex" but does not specifically refer to gender identity or sexual orientation.
The case is among the most high profile of the term. While some states and localities have laws on the books protecting LGBT employees, those laws do not apply in about half the country.
Arguments, which lasted two hours, concluded around noon. It was not immediately clear which side will garner a majority, though the outcome seemed to hinge on Justice Neil Gorsuch and Brett Kavanaugh, President Donald Trump's two appointees. Decisions are expected by the end of June, in the thick of the 2020 presidential election.
Several of the court's conservatives argued that expanding Title 7 to include discrimination against LGBT workers would be better handled by Congress. Attorneys for both sides have acknowledged that at the time the law was passed in 1964, its drafters likely did not envision that it would apply to gay or transgender individuals.
Justice Samuel Alito, one of the court's Republican appointees, noted that Congress has had time since the law was first passed to add protections for LGBT workers, and has declined to do so. If the court said the law applied to gay workers, "we will be acting exactly like a legislature," he said.
"This is the type of issue that is better left to Congress than the courts," Solicitor General Noel Francisco, arguing in favor of the employers, told the court. The question, Francisco said, wasn't whether Congress should bar discrimination against LGBT employees, but rather whether is had actually done so.
But Gorsuch, Trump's first appointee to the bench, suggested with his questioning that he was sympathetic to the argument that the word "sex" necessarily includes sexual orientation as well as gender identity.
"Let's do truth serum, okay? Wouldn't the employer maybe say [the firing is] because this person was a man who liked other men? And isn't that first part sex?" Gorsuch asked of Jeffrey Harris, an attorney for Clayton County, Georgia, which was accused of firing a county employee who is gay.
"Your honor, I think in common parlance, we would call that a same-sex attraction," Harris responded.
Justice Elena Kagan, one of the court's Democratic-appointees, suggested the text of the law weighed in favor of the employees.
"If he were a woman, he wouldn't have been fired," she told Francisco. "This is the usual kind of way in which we interpret statutes now. We look to laws. We don't look to predictions. We don't look to desires. We don't look to wishes. We look to laws."
But Francisco said that sex and sexual orientation were different traits. "That's precisely why when Congress wants to prohibit discrimination based on sexual orientation, it doesn't define sex as including sexual orientation. It lists it as a different trait," he said.
Attorneys for the employees fended off the idea that their argument required an "update" to Title 7. David Cole, an ACLU attorney who argued on behalf of a funeral director who was fired after announcing her intention to present as a woman, said that "we are not asking you to redefine sex."
"Interpreting a statute is not depriving the democratic process," Cole said.
In an exchange with Cole, Gorsuch said "I'm with you" on the text of the statute, adding that it it was "really close." But he expressed reservations about other elements of the case, warning of "massive social upheaval" should the Supreme Court rule for Cole's client. "That's an essentially legislative decision," he added.
Justice Ruth Bader Ginsburg, the senior member of the court's liberal wing, noted that interpretations of Title 7 had changed in the past. Since the law was enacted, the Supreme Court has held that it applied to discrimination based on sex stereotypes, as well as same-sex harassment, two zones that were not likely on the minds of the legislators who voted for it.
"No one ever thought sexual harassment was encompassed by discrimination on the basis of sex back in '64. It wasn't until a book was written in the middle '70s bringing that out," Ginsburg said. "And now we say, 'Of course, harassing someone, subjecting her to terms and conditions of employment she would not encounter if she were a male, that is sex discrimination. But it wasn't recognized."
Hypothetical questions about what the court's eventual decision will mean for society featured prominently, particularly as it pertained to gender-specific restrooms and sports programs. John Bursch, an attorney for the funeral home, R.G. & G.R. Harris Funeral Homes, warned that transgender women will work at shelters for women.
Cole's position "would mean that a women's overnight shelter must hire a man who identifies as a woman to serve as a counsellor to women who have been raped, trafficked, and abused and also share restroom, shower, and locker room facilities with them," Bursch said.
Cole said those were different questions. Even if the court ruled against his client Aimee Stephens, those cases would still arise, he said.
The question before the court is the first major test of Trump's two justices when it comes to LGBT rights. In focus ahead of arguments was Justice Brett Kavanaugh, who succeeded Justice Anthony Kennedy and is believed to be more conservative.
Kennedy was the author of the court's major opinions expanding LGBT rights, including the 2015 case which held that same-sex marriage is protected by the Constitution. Kavanaugh, though, provided few hints about where he stood on the matter on Tuesday, asking no questions that could shine a light on his thinking.
In addition to Stephens, the workers at the center of Tuesday's debate were Gerald Bostock, who was fired from his job as a child welfare services coordinator in 2013 after joining a recreational gay softball league, and Donald Zarda, who was fired from his job as a skydiving instructor after revealing his sexual orientation to a female client. Zarda has since passed away, but his case is being pursued by his family.
The cases are Gerald Lynn Bostock v. Clayton County, Georgia; Altitude Express v. Melissa Zarda; and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.