- The Washington Times - Monday, April 22, 2019

The U.S. Supreme Court agreed Monday to decide if federal employment discrimination laws protect LGBTQ employees, granting review in a series of cases that test the limits of what qualifies as sex-based discrimination.

The justices will determine if Title VII of the Civil Rights Act of 1964, which protects against discrimination based on sex, includes discrimination against homosexual and transgender employees.

One of the legal challenges comes from a New York-based skydiving company after a lower court sided with a former employee, Donald Zarda, who said he was fired because of his sexual orientation.

The U.S. Court of Appeals for the 2nd Circuit ruled that Altitude Express violated Title VII, determining that “sex” as written in the statute encompasses sexual orientation.

The company contends that “sex” pertains to gender discrimination and argues that if Congress wishes to protect LGBTQ employees, it can do so via legislation.

The case arose after Mr. Zarda disclosed to a patron he is homosexual and has an ex-husband. His employer said the patron complained that Mr. Zarda touched her inappropriately and had “a history of similar complaints of inappropriate behavior.”

The justices agreed to hear the case without comment Monday. At least four justices have to agree to grant review.

The high court also agreed to consider a case addressing the termination of a transgender employee, Aimee Stephens.

The appeal was brought by R.G. & G.R. Harris Funeral Homes, which has a sex-specific dress code requiring male employees to wear suits. After Ms. Stephens notified her boss she would be transitioning from male to female, the funeral home discharged her, citing the sex-specific dress code and the owner’s Christian faith.

The U.S. Court of Appeals for the 6th Circuit sided with Ms. Stephens, ruling that Title VII includes protection for transgender individuals, interpreting “sex” to include “gender identity.”

Harris Funeral Homes’ appeal was granted review without comment.

James Esseks, director of the American Civil Liberties Union’s LGBT & HIV Project, said that most Americans “would be shocked if the Supreme Court said it was legal to fire Aimee because she’s transgender or Don because he is gay.”

“Such a ruling would be disastrous, relegating LGBTQ people around the country to a second-class citizen status,” Mr. Esseks said in a statement. “The LGBTQ community has fought too long and too hard to go back now, and we are counting on the justices not to reverse that hard-won progress.”

Ms. Stephens was hired by the Detroit funeral home in 2007, and dismissed in 2014 after informing the management that she had transitioned to female and would no longer follow the dress code for men.

“Employees are free to dress as they wish on their own time,” Harris owner Tom Rost said Monday in a press call. “We are only asking for the freedom to hold our employees accountable to follow the dress code during work hours.”

He said his company was sanctioned for obeying existing law after the Equal Employment Opportunity Commission ruled against him by redefining “sex” as “gender identification.”

“Because the EEOC is seeking back pay and punitive damages, we could be forced to pay hundreds of thousands of dollars,” Mr. Rost said. “Few small businesses can survive that type of loss. We are hoping the Supreme Court will find that the EEOC cannot punish us by rewriting the law.”

Mr. Rost is represented by the Alliance Defending Freedom, which won last year’s Supreme Court case on behalf of a Christian baker disciplined by a Colorado state agency for refusing to create a cake for a gay wedding.

Alliance senior counsel John Bursch said “substituting ‘gender identity’ for ‘sex’ in federal law will have far-reaching effects,” such as opening public restrooms and showers to members of the opposite sex, allowing trans women to participate in women’s sports and requiring surgeons to perform sex-change operations.

“Whether the law should bring about these changes raises important policy questions that the American people have the right to decide for themselves through their elected officials,” Mr. Bursch said. “Unelected officials, whether bureaucrats or judges, do not have the power to make these choices for us.”

In a statement, Ms. Stephens said that what happened to her “was wrong, it was hurtful and it harmed my family. I hope the Supreme Court will see that firing me because I’m transgender was discrimination.”

Under the Obama administration, sex discrimination claims encompassed LGBT protections. However, the Trump administration has argued that Title VII doesn’t apply to homosexual or transgender employees.

The cases will be heard during the court’s next term, with decisions likely issued in June of 2020.

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