On October 8th, just the second day of the U.S. Supreme Court’s 2019-2020 Term, the nine justices of the Court listened to oral arguments in three cases on LGBT rights, the Altitude Express v. Zarda, Bostock v. Clayton County, and Harris Funeral Homes v. EEOC.
The Zarda and Bostock cases involve the issue of whether discrimination on the basis of sexual orientation can be “sex” discrimination under Title VII of the Civil Rights Act of 1964, and the Harris Funeral Homes case involves the issue of whether discrimination on the basis of gender identity can be sex discrimination underTitle VII. The employees in Zarda and Harris Funeral Homes won their cases in the lower courts of appeal, and the employee in Bostock had lost his. None of the cases was out of Texas.
With their questions and statements during arguments, justices may give clues to their position, and the arguments October 8th were no different, but it is dangerous to read too much into what justices say on the bench. It is likely the decision will be very close, with at least four votes in favor of the employees and two against them, with three (Justices Roberts, Gorsuch, and Kavanaugh) up in the air.
You never know when the Supreme Court will issue a decision, but one will certainly come before the end of the Term at the end of June 2020.