More than 20 states have laws prohibiting sexual discrimination based on sexual orientation, yet Georgia does not have such a law.
“These three cases will determine whether those very important civil rights protections apply nationwide as a matter of federal law,” said Robert Schapiro, an Emory University law school professor.
This will also be the most significant gay rights dispute to come before the court since Justice Anthony Kennedy retired last year.
Kennedy, a key swing vote, was replaced by Justice Brett Kavanaugh, a nominee of President Donald Trump. On the court, Kennedy authored several landmark decisions in favor of gay rights. This included overturning a Texas law that criminalized sodomy, striking down a Colorado voter initiative that denied civil rights protections to the LGBT community and the legalization of same-sex marriage.
WASHINGTON, DC - APRIL 10: U.S. Supreme Court Associate Justice Anthony Kennedy is seen during a ceremony in the Rose Garden at the White House April 10, 2017 in Washington, DC. Kennedy was instrumental in deciding many of the court’s most important gay rights’ cases. (Photo by Eric Thayer/Getty Images)
Credit: Eric Thayer
Credit: Eric Thayer
“Certainly on any issue relating to the LGBT community, the absence of Justice Kennedy is potentially quite significant,” Schapiro said. “These cases will give insight into how this new configuration of the Supreme Court addresses issues relating to gay and lesbian rights.”
As it typically does, the Supreme Court waited to hear the issue until there was a split among the federal appeals courts. While at least three appellate courts have granted victories to gay, lesbian and transgender plaintiffs, the 11th U.S. Circuit Court of Appeals in Atlanta was an exception.
In that case, Bostock contended he was fired by Clayton County as a child welfare services coordinator because he is gay. Bostock, who received good performance reviews, joined a gay softball league in 2013 and promoted it as a place for volunteer opportunities, court records say.
But Bostock said he was openly criticized for his participation in the league by people with significant influence over the county’s decision-making. In April 2013, the county conducted an audit on the funds managed by Bostock and fired him two months later for conduct unbecoming a county employee.
In his suit, Bostock contended the audit was used as a pretext against him because he is gay.
A federal judge in Atlanta dismissed Bostock's complaint. She largely relied on a ruling issued by the 11th Circuit in 2017, when it said Title VII did not protect a Georgia Regional Hospital security guard who claimed she was fired because she's a lesbian.
In May 2018, a three-judge panel of the 11th Circuit unanimously dismissed Bostock's discrimination claims. Two months later, when the full 11th Circuit court declined to revisit that ruling, a number of the court's more liberal judges issued stinging dissents.
Judge Robin Rosenbaum, for example, said the issue is of monumental importance to the LGBT community.
“I continue to firmly believe that Title VII prohibits discrimination against gay and lesbian individuals because they fail to conform to their employers’ views when it comes to whom they should love,” wrote Rosenbaum, an appointee of President Barack Obama.
Judge Robin Rosenbaum of the 11th U.S. Circuit Court of Appeals in Atlanta.
Citing a 2011 study, Rosenbaum noted there are millions of Americans who identify as gay, lesbian or bisexual, and roughly 25 percent of them experience workplace discrimination because their sexual preferences do not match their employers’ expectations.
In a statement issued Monday, Clayton County said Bostock was terminated based on the audit which disclosed his handling of the funds he was managing violated company policies and procedures. It added that Bostock’s firing “had nothing to do with his sexual orientation.”
As for Bostock’s discrimination claims, the county said in its Supreme Court filing, “the inconvenient reality” for him is that Title VII does not include sexual orientation as a protected class. It applies only on the basis of “sex” and other protected classes, such as race, religion and natural origin, the county said.
Instead, Bostock is advancing novel legal theories that “are solely intended to entice the court to seize legislative power from Congress and do what Congress declined to do for more than 50 years: amend Title VII by adding sexual orientation as a protected class.”
But Greg Nevins, a Lambda Legal senior counsel who has argued for protections for a number of LGBT clients, strongly disagreed.
“Discrimination against someone for being transgender or being in a same-sex relationship is a form of discrimination because of sex, plain and simple. There is no reason for the Supreme Court to carve LGBT people out of a law that by its own terms protects us from discrimination.”
One of the other two cases the Supreme Court will consider involves skydiving instructor Donald Zarda, who said he was fired because he is gay. The 2nd U.S. Circuit Court of Appeals in New York ruled in Zarda’s favor.
The third case involves Aimee Stephens a Michigan transgender woman who contends she was fired by a funeral home after she disclosed to her boss she was transitioning from male to female. The 6th U.S. Circuit Court of Appeals in Cincinnati ruled in her favor, saying the funeral home engaged in unlawful sex discrimination.