JUDY WOODRUFF: This is day two of the United States Supreme Court's new term, and already
the justices are grappling with one of the highest-stakes questions on its docket.
It is about Title VII of the 1964 Civil Rights Act, which bars employers from discriminating
against employees on the basis of sex.
But does Title VII also protect against discrimination on the basis of sexual orientation or gender
identity?
William Brangham starts there.
WILLIAM BRANGHAM: The demonstrations outside the Supreme Court today reflect just how high-stakes
these cases are.
Several were argued this morning.
They're the most significant LGBTQ rights cases since 2015, when the court legalized
same-sex marriage nationwide.
Gerald Bostock is a welfare case worker from Georgia.
He initiated one of the lawsuits that made it to the court today.
He said he was fired because he's gay.
GERALD BOSTOCK, Plaintiff: We're talking about millions and millions of people who go to
work every day fearful for being fired for who they are, how they identify, and who they
love.
And that's wrong.
WILLIAM BRANGHAM: Another of the lawsuits was initiated by Aimee Stephens.
She is transgender and said she was fired from a Michigan funeral home after beginning
her transition.
But a lawyer representing the funeral home says Title VII doesn't apply here.
JOHN BURSCH, Attorney: Americans should be able to rely on what the law says.
First, it was unelected government officials.
Now it is the ACLU that seeks to redefine sex in federal law, a change that Congress
has repeatedly rejected.
WILLIAM BRANGHAM: Inside the courtroom today, as always, was Marcia Coyle of "The National
Law Journal," and she joins me now.
Marcia, welcome back, as always.
MARCIA COYLE, "The National Law Journal": Thank you.
WILLIAM BRANGHAM: The argument today is whether Title VII, which bans job discrimination on
the basis of sex, could also include protecting sexual orientation, right?
Was that the argument today?
MARCIA COYLE: That's right, William.
Does that language, sex, encompass discrimination on the basis of sexual orientation and gender
identity?
WILLIAM BRANGHAM: And as we heard from one of the plaintiffs, who basically argued, I'm
was fired because I'm gay, and thus, under Title VII, I should be protected.
MARCIA COYLE: Right.
And the other plaintiff you heard from, Aimee Stephens, because she was -- she claimed she
was fired because of her gender identity, that she had transitioned from male to female.
And today, William, there were two hours of arguments.
The court had consolidated two cases involving sexual orientation for one hour, and then
the case on gender identity for a second hour.
And the arguments were fascinating, fast, quick, path-breaking.
We heard for the first time words like transgender, cisgender, even...
WILLIAM BRANGHAM: Is that right?
That's the first time those have been uttered in the Supreme Court?
MARCIA COYLE: First time I have ever heard them.
WILLIAM BRANGHAM: Interesting.
MARCIA COYLE: And I have been covering the court a long time.
The LGBTQ community is arguing that, because of sex, that this is a plain statutory interpretation
case, that the text of Title VII, because of sex, applies.
And the best way to explain it was probably Pam Karlan, who argued for those plaintiffs
today on sexual orientation, in which she said, if an employer fires a male employer
-- employee because he dates men, but doesn't fire a female employee who dates men, then
that employer has discriminated against the man because the employer's treating that man
worse than the female employee.
And it's because of sex, because the firing is based on the employee, the male employee's
failure to conform to the employer's expectation of the male sex's behavior.
And it's very similar in terms of the gender identity case, too.
Aimee Stephens, they say, was fired because of sex.
She was fired because of her biological sex at birth.
If she had had a different sex, female, she wouldn't have been treated -- or she would
have been treated differently.
She wouldn't have been fired.
So -- and, also, in her case, there's an additional element.
She claims she was fired because she didn't conform to the funeral home owner's expectations
of how men and women should look, act, and behave.
And that's illegal stereotyping under Title VII.
So those are the arguments on one side.
The Trump administration and the employer lawyers are saying, no, the text of Title
VII supports us, too.
In 1964, when Congress enacted the law, sex was biological, male and female.
WILLIAM BRANGHAM: And only those two.
MARCIA COYLE: Absolutely.
Sexual orientation and gender identity, they say, are independent, distinct traits or characteristics;
they're not covered by the language of Title VII.
WILLIAM BRANGHAM: And how did the justices seem to respond to this idea of sort of broadening
the definition of Title VII?
MARCIA COYLE: Well, I think there were three sort of considerations, first on the meaning
of the language, the text.
You had Justice Gorsuch, for example.
He said he thought the textual evidence here was very, very close, but he didn't say close
to what.
So we're not quite sure where he is, whereas Justice Kagan said she thought it was quite
clear and that Title VII is very simple.
It says because of sex, and if you have been discriminated for your sex, then Title VII
is there to protect you against that discrimination.
The second concern seemed to be the role of the court itself.
Justice Alito said to the lawyers for the LGBTQ plaintiffs, if we rule for you, some
people are going to say, this is a big policy issue.
This is something Congress should be dealing with.
Congress has considered or has failed to consider this, despite requests over a number of years.
If we rule, we're acting like a legislature.
But then you had Justice Sotomayor saying at a later point, sort of in response to that,
at what point does a court step in to stop invidious discrimination?
And, finally, I think, the court was concerned about what might be the impact if they do
rule for the LGBTQ community.
There were a lot of hypotheticals about, well, what's going to happen to sex-segregated bathrooms,
sex-segregated athletic teams, dress codes?
And the lawyers for the plaintiffs here, the victims here, seemed to be telling the justices,
look, that's not in these cases right now.
We're talking about the workplace, Title VII.
Those cases may come to you later, no matter how you rule, but, right now, we're talking
about straight statutory interpretation.
WILLIAM BRANGHAM: And depending on how the justices rule on this, I mean, this could
impact a huge number of employees across the country.
MARCIA COYLE: This is incredibly important to these workers.
I think fewer than half of the states have in their own laws workplace protections for
LGBTQ workers.
And so that leaves an enormous -- I think almost eight million employees without protection
from workplace discrimination.
So, yes, the stakes are huge.
WILLIAM BRANGHAM: So this is obviously an enormous case.
We know there is a huge term, with guns and immigration and abortion.
So I know we will be seeing a lot more of you in the future.
Marcia Coyle, as always, thank you.
MARCIA COYLE: Always a pleasure.