Stanford law professor Pamela Karlan, who argued on behalf of two gay men who were fired, said even with that understanding, the law should apply in this case.
"When a employer fires a male employee for dating men, but does not fire female employees who date men, he violates Title VII," she said, referring to a provision of the 1964 law. "The employer has ... discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex."
Gorsuch said several times that he could accept the argument that firing a gay or transgender employee involved sex discrimination. When a lawyer defended an employer who allegedly fired a gay employee, Gorsuch said he did not see how sex played no role.
"Let's do truth serum, OK? Wouldn't the employer maybe say it's because this person was a man who liked other men? And isn't that first part sex?" Gorsuch asked. At the same time, he also voiced concern about what he called the "massive social upheaval" that might be caused by extending the law to LGBTQ workers.
It is the first significant gay rights case before the high court since Justice Brett M. Kavanaugh replaced the retired Justice Anthony M. Kennedy. Though a moderate conservative, Kennedy wrote all of the court's opinions upholding the rights of gays and lesbians, including the 2015 decision upholding the right to marry for same-sex couples. Kavanaugh said little during the arguments, so his views remain unclear.
At present, federal anti-discrimination laws do not protect gays, lesbians or transgender workers. The House under Democratic control passed the Equality Act in May to amend the Civil Rights Act and to prohibit discrimination on the basis of "sexual orientation, gender identity, pregnancy (or) childbirth." But the measure is stalled in the Republican-controlled Senate.
California and 21 other states forbid discrimination based on sexual orientation, and several other states have such protections for public employees. But there are few such protections in the South and much of the Midwest and Great Plains.
The justices heard arguments in three cases: two involving gay men and one involving a transgender woman.
Gerald Bostock said he was fired from his position as a child welfare services coordinator in Clayton County, Ga., not long after he joined a gay softball league. He appealed in Bostock v. Clayton County after his discrimination suit was tossed out.
In 2010, Donald Zarda was fired from his job as a sky-diving instructor in New York after jokingly assuring a woman customer she had nothing to fear from being strapped to him in the air because he was gay. He later died in an accident, but his sister has pursued his suit in Altitude Express v. Zarda.
Aimee Stephens said she was fired from her job at a family-run funeral home in Detroit after she returned from a vacation as a woman. The EEOC sued on her behalf, but the court will hear the employer's appeal in R.G. & G.R. Harris Funeral Homes v. EEOC.
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GRAPHICS (for help with images, contact 312-222-4194): 20191008 Gay evolution, 20191008 LGBTQ work rights