TheEconomistSeptember 28th 2019 231A
bolstered five-justice conservative
majority begins its first full term to-
gether when the Supreme Court returns to
work on October 7th. The session follows
four tumultuous years that saw one death,
a retirement, three pitched Senate confir-
mation battles, two new arrivals and, for
Justice Ruth Bader Ginsburg—86 and the
anchor of the court’s liberal wing—two
cancer diagnoses. A bundle of hot-button
controversies await the nine.
Discrimination against gay and trans-
gender people is on the docket on the jus-
tices’ second day back. The question is
whether the bar on discrimination “be-
cause of sex” in Title VII of the Civil Rights
Act of 1964 prevents an employer from dis-
advantaging employees on the basis of
their gender identity or sexual orientation.
Fewer than half the states have laws against
sacking workers because they are gay or
trans. Now the Supreme Court will decide if
the federal civil-rights umbrella protects
some 8.1m lgbtworkers across America.
Gerald Bostock, a child advocate (wel-
fare officer) in Georgia, was fired after join-
ing a gay softball league. Donald Zarda, a
skydiving instructor in New York, was
sacked after he told a customer he was gay.
Mr Zarda died in 2014, but in 2018 he pre-
vailed posthumously in the Second Circuit
Court of Appeals. Sexual-orientation bias,
the judges held, is “a subset of sex discrim-
ination”, because it is based on notions
about “how persons of a certain sex can or
should be”. Mr Bostock’s similar conten-
tion was rejected in the 11th Circuit, creat-
ing a split that the Supreme Court is this
term stepping in to resolve.Transgender discrimination gets sepa-
rate treatment in R.G. & G.R. Harris Funeral
Homes Inc. v Equal Employment Opportunity
Commission. After six years as a funeral di-
rector in Michigan, Aimee (née Anthony)
Stephens wrote to Thomas Rost, her boss,
explaining that she planned to transition
and would present herself as a woman at
work. Two weeks later Mr Rost fired Ms Ste-
phens. Failing to wear the suit and tie re-
quired of male employees and presenting
as a woman would have a negative impact
on his clients’ “healing process”, Mr Rost’s
lawyers say, and the “original public mean-
ing” of sex discrimination when Congress
wrote Title VII in 1964 did not require trans-
gender people to be treated according to
their self-declared gender identity rather
than their biological sex.
A three-judge panel of the Sixth Circuit
Court of Appeals disagreed. Mr Rost illegal-
ly discriminated against Ms Stephens, the
panel held unanimously, by treating her
differently from how he would have treated
a female employee and by requiring her to
conform to male stereotypes.
The Trump administration has taken
the employers’ side in the Title VII cases—
contrary to the view of another arm of the
federal government, the Equal Employ-
ment Opportunity Commission—and will
take part in oral arguments. The federal
government has a more direct stake in two
immigration disputes to be heard on No-
vember 12th. A reprise of a 2017 case asksThe Supreme Court
Robes on
WASHINGTON, DC
Fallout from America’s culture wars looms over the justices’ new term
United States
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