EDITORIAL: Weighing the cost of LGBT rights
Supreme Court Justice Neil Gorsuch is afraid that if employers are no longer allowed to fire workers just because they are gay, there will be "massive social upheaval."
Gorsuch made this statement Tuesday during arguments in two cases before the court to determine whether LGBT workers are included in Title 7, the section of the Civil Rights Act of 1964 that prohibits job discrimination on the basis of sex, among other things.
The court will rule on two cases, one in which two men said they were fired because they were gay and another in which a funeral director told her employer that she was a trans woman and would be no longer be dressing and representing herself as a man, and her employer fired her.
Gorsuch, President Donald Trump’s first Supreme Court appointee, said there are strong arguments favoring the LGBT workers, but he suggested that maybe Congress, not the courts, should change the law because of the upheaval that could ensue.
Lawyers for the Trump administration, which has, of course, reversed the Obama administration's interpretation that Title 7 includes LGBT workers, and lawyers for the employers also pointed out that there might be changes required in bathrooms, locker rooms, women’s shelters and school sports teams if the court were to rule in favor of the LGBT workers.
David Cole, the American Civil Liberties Union lawyer representing fired transgender funeral home director Aimee Stephens, said the situation at the court itself showed such concerns were overblown.
“There are transgender male lawyers in this courtroom following the male dress code and going to the men’s room, and the court’s dress code and sex-segregated restrooms have not fallen,” Cole said.
The Civil Rights Act of 1964 doesn't mention sexual orientation or gender representation because at that time those terms meant nothing. In the era of "Mad Men," homosexuality was considered a mental illness, Justice Ruth Bader Ginsburg pointed out.
The Trump administration and the employers say Congress could settle the matter by amending Title 7 to include LGBT people. Legislation to that effect is pending in Congress but is not likely to pass the Republican-controlled Senate.
In 21 states, plus D.C., Guam and Puerto Rico, discrimination based on sexual orientation and gender identity is prohibited. Pennsylvania is not one of those states.
Legislation to add sexual orientation to Pennsylvania's Human Relations Act has been proposed in every legislative session for years, and yet it remains stalled in the Republican-controlled Legislature. This session, the Fairness Act is sponsored in the House by Rep. Dan Frankel, D-Allegheny. It was introduced May 6 as HB1404 and has 88 co-sponsors, including Rep. Carol Hill-Evans, D-York City.
The workers in the two cases being argued contend, and the lower courts have agreed, that the law as it stands plainly covers sexual orientation and gender identity because discrimination against them is based on generalizations about sex that have nothing to do with their ability to do their jobs.
They also argue that they were fired for not conforming to sex stereotypes, a form of sex discrimination that the Supreme Court recognized 30 years ago.
The four liberals on the court clearly side with the workers involved, with Justice Sonia Sotomayor asking at what point the court should step in to stop the overt discrimination LGBT employees face.
Generally, the thought on one side of the arguments is, this is too hard. It's too difficult to stop discrimination against this subset of Americans. There would be too much work involved. It might cost money.
It's easier to let the status quo remain, they said.
And that's the problem right there. Of course it's difficult to create social change. It will take work. It might cost money.
But making sure people do not face discrimination for causes that do not affect their job performance is simply the right thing to do. And that should trump every other argument.