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At the Supreme Court today, a long-awaited showdown over LGBTQ rights and employment. The justices will hear a set of cases testing whether the federal law that bars sex discrimination in employment applies to LGBTQ employees. Specifically, the question is whether employers are free to fire employees because they are gay or transgender. NPR legal affairs correspondent Nina Totenberg has more.
NINA TOTENBERG, BYLINE: For 10 years, Gerald Bostock was the child welfare coordinator for Clayton County, Ga. His primary responsibility was a program that provided advocacy in court for abused and neglected children.
GERALD BOSTOCK: It's the job I loved, and my employer loved me doing the job. We actually reached the benchmark of serving 100% of the children in foster care, which was an unheard of milestone for any metro Atlanta program.
TOTENBERG: But in 2013, Bostock joined a gay recreational softball league.
BOSTOCK: And from that point on, my life changed. Within months, I was fired for being gay. I lost my livelihood. I lost my medical insurance. And I was recovering from prostate cancer when this occurred. It was devastating.
TOTENBERG: Aimee Stephens is not gay but transgender. She worked for six years as a funeral director for the Harris Funeral Home in Livonia, Mich., presenting as a man. But by 2012, she was in despair over her gender identity.
AIMEE STEPHENS: (Reading) I stood in the backyard for an hour with a gun to my chest, but I couldn't do it and I chose life.
TOTENBERG: Stephens decided she would come out at work as a transgender woman. For eight months, she worked on a letter to her boss and co-workers telling them of her sexual identity.
STEPHENS: (Reading) I realize that some of you may have trouble understanding this. In truth, I have had to live with it every day of my life, and even I do not fully understand it myself.
TOTENBERG: Two weeks after giving the letter to her boss, Stephens was fired. Aimee Stephens and Gerald Bostock both took their former employers to court, charging that their dismissals were based on sex and thus violated Title VII of the 1964 Civil Rights Act, which bars discrimination, quote, "because of sex." Now their cases are before the U.S. Supreme Court. Neither Clayton County officials nor their lawyers would agree to be interviewed about the Bostock firing for this broadcast. But the owner of Harris Funeral Homes, Tom Rost, explained in a videotaped interview with his lawyers why he fired Aimee Stephens.
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THOMAS ROST: The families that we serve - how would they possibly react to this? It's just kind of beyond what you can possibly think of. And this individual - Stephens was a face of Harris Funeral Home.
TOTENBERG: Now, under the 1964 law, customer preference is not a justification for illegal discrimination based on sex. But the employers have a broader defense. It is that Title VII of the '64 act does not apply to sexual orientation or gender status at all. John Bursch represents the Harris Funeral Homes.
JOHN BURSCH: Everyone understood in 1964 that sex meant biological sex, so treating a biological woman less favorably than a biological man because she is a woman. And that just does not translate into other categories.
TOTENBERG: The employers are supported by 15 states, including Texas and its solicitor general, Kyle Hawkins, who makes what he calls a common-sense argument.
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KYLE HAWKINS: Sex is not the same as sexual orientation and not the same as gender identity.
TOTENBERG: Lawyers for the fired workers counter that the Supreme Court over the last half-century has interpreted the law far more broadly than that. Stanford law professor Pam Karlan notes that the justices have applied the anti-discrimination statute to a variety of situations that Congress was not thinking about in 1964.
PAMELA KARLAN: In 1964, you wouldn't find a single dictionary that defined the term sexual harassment. And yet the Supreme Court has held that Title VII prohibits sexual harassment of women but also sexual harassment of men.
TOTENBERG: Indeed, more than two decades ago, the Supreme Court ruled that even same-sex sexual harassment was illegal under the statute. Stanford's professor Karlan, arguing for the gay employees, today will remind the justices of the court's very first sex discrimination case after enactment of the 1964 law. At issue was a challenge to an employer policy that barred hiring women with young children. The court ruled unanimously that the policy was illegal sex discrimination.
KARLAN: And we say, if it's sex discrimination to say you can't work for us if you are a woman and you have children at home, it's also sex discrimination to say you can't work at us because you're a woman and you have a wife at home.
TOTENBERG: She argues that just as women with children are a subset of women covered by the anti-discrimination law, so too are gay and lesbian employees.
KARLAN: If you wouldn't fire a man for marrying a woman and you would fire a woman for marrying a woman, you've discriminated against the woman who works for you.
TOTENBERG: The argument for transgender employees may be politically more difficult to sell, but it's arguably more stark. It goes like this. If an employer hires a man and later fires him when he shows up as a woman, how is that not discrimination because of sex?
Making the counterargument today, lawyer Bursch will tell the justices that sexual orientation and gender status simply do not fit under the 1964 anti-discrimination formula. He warns that if the court were to rule against the employers in these cases, it could have serious ramifications beyond employment.
BURSCH: If we redefine the meaning of sex in federal law, it has implications far beyond this case, including allowing biological men to identify as women and take women's places on sports teams.
TOTENBERG: Federal law does indeed bar sex discrimination in sports programs at schools that get federal money, and the NCAA has elaborate rules for dealing with trans student athletes. But as Stanford's Karlan observes...
KARLAN: Title IX is a different statute, and the regulations under Title IX for having separate sex teams and the like are different than the rules in the workplace.
TOTENBERG: Lawyers for the employers counter that these and many other questions simply were not anticipated by Congress back in 1964, and that given the changes in society since then, it is Congress that should address these issues now, not the courts. Nina Totenberg, NPR News, Washington.
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