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6 ¦ JUNE 22, 2020 NEWS

¦ From NO CONTEST on PAGE 5 words about what the statute meant. “And regardless
by employers “because of … sex.” Two cases— of what others may have thought over time, it’s very
Bostock v. Clayton County, Georgia, and Altitude clear that what’s happening fits those words. At what
Express v. Zarda—raised the question of sexual point do we say we have to step in?”
orientation under Title VII. R.G. and G.R. Harris James Esseks, director of the ACLU’s LGBTQ &
Funeral Homes v. Equal Employment Opportuni- HIV Project, said in a statement about Monday’s
ty Commission and Stephens centered on gender ruling: “This is a huge victory for LGBTQ equality.
identity. Over 50 years ago, Black and Brown trans wom-
During arguments in October in Bostock and en, drag queens, and butch lesbians fought back
Zarda, Stanford Law’s Pamela Karlan, representing against police brutality and discrimination that
gay and lesbian employees, told the justices: “When too many LGBTQ people still face. The Supreme
an employer fires a male em- Court’s clarification that it’s un-
ployee for dating men but does lawful to fire people because
not fire female employees who they’re LGBTQ is the result of
date men, he violates Title VII. decades of advocates fighting for
The employer has, in the words our rights. The court has caught
of Section 703(a), discriminated up to the majority of our coun-
against the man because he treats try, which already knows that
that man worse than women who discriminating against LGBTQ
want to do the same thing. And “When the express terms people is both unfair and against

that discrimination is because of of a statute give us one the law.”

sex because the adverse employ- answer and extratextual John Bursch, vice president

ment action is based on the male considerations suggest of appellate advocacy at Alli-
employee’s failure to conform to ance Defending Freedom, said in
a particular expectation about another, it’s no contest,” a statement: “Americans must
how men should behave.” be able to rely on what the law
Justice Neil Gorsuch wrote says, and it is disappointing that
But Alito noted that Con- for the majority. “Only the a majority of the justices were
gress has repeatedly declined to written word is the law, and unwilling to affirm that common-
act on requests to address the all persons are entitled to its sense principle. Redefining ‘sex’ to
sexual-orientation issue. “And
benefit.”

if the court takes this up and mean ‘gender identity’ will create
interprets this 1964 statute to chaos and enormous unfairness
prohibit discrimination based for women and girls in athletics,
on sexual orientation, we will be women’s shelters, and many other
acting exactly like a legislature,” contexts. Civil rights laws that use
he said. the word ‘sex’ were put in place
Karlan’s opponents, Jeffrey to protect equal opportunities for
Harris of the boutique firm women. Allowing a court or gov-
Consovoy Park and U.S. Solicitor General Noel Fran- ernment bureaucrats to redefine a term with such
cisco, argued that the sexual orientation and gender a clear and important meaning undermines those
identity issues should be decided by Congress, not very opportunities—the ones the law was designed
the high court. The EEOC, which has pushed for a to protect.”
broad reading of Title VII, did not join the Justice ¦

Department’s brief in the Supreme Court. Marcia Coyle, based in Washington, covers the
At the hearing, Justice Sonia Sotomayor coun- U.S. Supreme Court. Contact her at mcoyle@alm.
tered that the original Congress used very clear com. On Twitter: @MarciaCoyle

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