By Zach Stern
The Supreme Court heard oral arguments last month in three cases to determine what “sex” is under Title VII of the Civil Rights Act of 1964. All three cases – Bostock v. Clayton County Board of Commissioners, R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, U.S., and Altitude Express, Inc. v. Zarda – focus on whether an employer can fire an employee because of the employee’s sexual orientation or gender identity. In Bostock and Zarda, employees were fired based on their sexual orientation. In Bostock, the 11th Circuit held that Title VII does not apply to sexual orientation. However, in Zarda, the 2nd Circuit held that sexual orientation is covered by Title VII. Accordingly, the Supreme Court agreed to hear the cases based on this circuit split. Harris Funeral Homes was brought after an employee was fired after notifying her employer that she had transitioned from identifying as a man to identifying as a woman.
During oral arguments, parties on both sides argued that the text of Title VII supported their position. The Plaintiffs in Harris Funeral Homes argued that Title VII protects against discrimination on the basis of sex assigned at birth. They posited that had the Plaintiff been assigned the sex of a woman at birth, she would not have been fired. It was only because of her sex assignment at birth, and her lack of conformity with normative behaviors associated with that sex, that she was fired.
Solicitor General Noel Francisco had a different textualist interpretation. Francisco argued that Title VII protects people who are similarly situated against discrimination. So, for example, if transgender women were fired at the same rate as transgender men, or gay men were fired at the same rates as gay women, there is not discrimination on the basis of sex.
Chief Justice Roberts made an interesting distinction during the Harris Funeral Homes argument. “If you analyze it because of sex, there’s no disadvantage, whether you’re a man or a woman.” Roberts continued, “But if you analyzed it on the basis of transgender status, there is.” Unfortunately for proponents of LGBTQ+ rights, the case will decide whether there is discrimination on the basis of sex, not whether transgender (or LGBTQ+) status is separately protected.
Justice Gorsuch took a puzzling stance. After stating his agreement with the textualist analysis put forth by the Plaintiffs, Gorsuch asked whether a judge deciding this case should “take into consideration the massive social upheaval that would be entailed in such a decision,” wondering if this question is “more appropriate a legislative rather than a judicial function.” Despite that Gorsuch, a known textualist when it comes to statutory interpretation, admitted he sides with the Plaintiffs on this question, he appears intent to punt the case because it’s an issue that should be decided by the electorate.
Additionally, the parties disagreed when it came to a potential slippery slope argument. In Harris Funeral Homes, Francisco and the employers’ attorneys argued that if the Court ruled in favor of the Plaintiffs, two things would happen. First, transgender people would be allowed to use the bathroom associated with their gender identity. And second, transgender women would have a legal right to work at battered women shelters.
However, the liberal Justices of the Court took issue with this argument. Justice Ginsburg found herself repeatedly asking the defense and government lawyers what the injury would be for not being able to use a preferred bathroom. While an injury may certainly be alleged, and have occurred, it would be less obvious than in a case where an employee lost his or her job.
Additionally, the liberal Justices rejected the idea that a transgender woman would automatically qualify for employment at a battered women’s shelter. Title VII specifically incorporates a Bona Fide Occupational Qualification defense to discrimination. If the shelter believed that women assigned at birth were required to hold these specific jobs, and a court found it to be reasonably necessary to maintain normal operations, that would be allowed, regardless of the outcome in this case.
Will one of the conservative Justices join the liberal wing of the Court and find that Title VII prevents discrimination on the basis of sexual orientation and gender identity? Unfortunately, it seems unlikely. Justice Gorsuch, sadly, might be the best hope. Explicitly stating his textual interpretation of Title VII does support a discrimination finding here, he seems destined to punt this question to the legislature.
If the Court does decide that Title VII does not cover gay and trans individuals, there could be dire consequences—namely, that gay and trans employees can be fired for no reason other than this fact.
The Court in Price Waterhouse v. Hopkins held: “We are beyond the day when an employer could evaluate employees by insisting that they match the stereotypes associated with their group.” Unfortunately, it seems like we aren’t.
 Transcript of Oral Argument at 16, R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, case no. 18-107, argued October 8, 2019.
 The Plaintiffs in the other cases also argued that firing someone based on their sexual orientation is also discrimination on the basis of sex assigned at birth—had the employee been a woman, and was attracted to men, she would not have been fired. But because the employees were men, and attracted to me, they were fired.
 Id. at 30.
 Id. at 7.
 Id. at 8.
 Id. at 26.
 Transcript of Oral Argument at 48, Bostock v. Clayton County, case no. 17-1618, argued October 8, 2019.
 Harris Funeral Homes, at 29.
 Bostock, at 20.
 Id. at 34.