Supreme Court report. Contentious cases

• Author: Mark Walsh
• Pages: 18-19

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 he U.S. Supreme Court will

tackle some pretty big issues

in its next term, including

cases on LGBT rights, immi-

gration and its rst major case on gun

rights in nearly a decade. And that’s

with only about half of its docket lled

for the term that begins Oct. 7.

“The court has on its agenda a set

of really high-prole cases,” says Adam

Winkler, a law professor at the University

of California at Los Angeles. “The reason

is that the court stayed out of the political

thicket last term.”

Most legal observers agree that the

justices worked hard to block or push

down the road several contentious cases

from last term’s docket, except for two

big issues that it pretty much had to

decide: political gerrymandering and the

citizenship question on the U.S. census.

“I think they are only able to

keep these big blockbuster cases

off the docket for a short period of

time,” says Leah Litman, an assistant

SUPREME COURT REPORT

Contentious Cases

The court will take on big issues that have been percolating for a while

BY MARK WALSH

professor at the University of

Michigan Law School and a co-host of

the podcast Strict Scrutiny.

High stakes for LGBT rights

One set of potential blockbusters will be

heard Oct. 8. Two consolidated cases ask

whether workplace discrimination based

on sexual orientation is covered by Title

VII of the Civil Rights Act of 1964,

specically its prohibition against bias

“because of … sex.” The ABA led an

amicus brief supporting the employees.

The third case, which will be argued

separately, asks whether Title VII bars

discrimination against transgender

workers because of their transgender

status or because of sex stereotyping.

“There is a lot at stake in these

cases for LGBT people,” says James D.

Esseks, the director of the American

Civil Liberties Union’s Lesbian Gay

Bisexual Transgender & HIV Project

and co-counsel in two of the cases.

“The reality is that LGBT people have

been relying on protections based on

sex discrimination statutes for years.

The question before the court is,

Are [the justices] going to take those

protections away?”

John J. Bursch of Alliance Defending

Freedom, an Arizona-based national

Christian organization representing the

employer in the transgender rights case,

takes a different view.

“What’s at stake here is whether the

courts have the ability to rewrite a federal

law to align with their own personal

policy preferences instead of letting

Congress do this by amendment,” says

Bursch, the vice president of appellate

advocacy and senior counsel to the ADF.

The group represents the family-

owned Michigan funeral home in the

transgender case, R.G. & G.R. Harris

Funeral Homes Inc. v. Equal Employment

Opportunity Commission. The funeral

home red Aimee Stephens, who was

born male and began working as a

funeral director and embalmer in 2007.

In 2013, Stephens presented co-

workers with a letter outlining her

struggles with her gender dysphoria

and her intention to have gender-

reassignment surgery, to be preceded

by presenting herself consistent with

her gender identity as a woman. The

funeral home owner, Thomas Rost,

red Stephens, in his words from court

papers, because “he was no longer

going to represent himself as a man.”

The Cincinnati-based 6th U.S. Circuit

Court of Appeals held that the funeral

home violated Title VII by ring Stephens

because she did not conform to Rost’s

sex stereotypes. The Supreme Court

granted review to decide whether Title

VII prohibits discrimination against

transgender people based on their

status as transgender or based on sex

stereotyping under its 1989 landmark

decision in Price Waterhouse v. Hopkins.

Also on Oct. 8, the justices will hear

arguments in two related cases, Bostock

National Pulse edited by

BLAIR CHAVIS & KEVIN DAVIS

blair.chavis@americanbar.org

kevin.davis@americanbar.org

T

ABA JOURNAL | SEPTEMBER–OCTOBER 2019

Photo Illustration by Tahiti Spears/pixabay.com/pexel.com/unsplash.com