The Supreme Court appeared divided Tuesday as the justices heard oral arguments in a trio of cases that could decide whether gay and transgender people are protected under federal workplace discrimination laws.
The court is being asked to decide whether Title VII of the Civil Rights Act, which prohibits employment discrimination over “sex,” covers gender identity and sexual orientation. One case involves a plaintiff from Georgia, Gerald Bostock, who alleges he was fired by a former employer who discovered his sexual orientation.
Another case involves a man named Don Zarda, who alleged that he was fired from his job as a skydiving instructor in New York after a customer complained to his employer that Zarda had noted that he was gay. Zorda died in 2014, but his estate is pursuing his case.
And the court will also weigh in on a case where a transgender woman named Aimee Terese alleged that she was fired from the Michigan funeral home where she worked after she revealed to her boss that she no longer identified as a man.
The justices appeared to be split mostly along ideological lines, though Justice Neil Gorsuch, a Trump appointee, questioned the lawyers for both sides, which may be a sign that he could potentially be swayed to side with the workers in the cases.
But Gorsuch also suggested that a decision in favor of the workers could lead to “massive social upheaval.”
The Trump administration weighed in against the workers in the sexual orientation cases, arguing that the language of Title VII does not cover gay and lesbian employees.
“The issue is not whether Congress can or should prohibit employment discrimination because of sexual orientation,” Solicitor General Noel Francisco told the justices. “The issue, rather, is whether it did so when it prohibited discrimination because of sex.”
Lawyers for the fired workers argued that the court should interpret the language more broadly.
“Our argument was simple,” David Cole, the ACLU’s national legal director, told reporters after the hearing. “The argument is that when Congress passed Title VII they intended to make sex irrelevant to people’s ability to succeed at work.”
Cole also pushed back against Gorsuch’s worry over the potential for social upheaval.
“There were transgender lawyers in that courtroom, and the transgender men were following the men’s dress code and using the men’s restroom and the transgender women were following the women’s dress code and using the women’s restroom and the sky has not fallen,” he told reporters.
The case has drawn the interest of large businesses, civil rights groups and labor organizations, all of whom largely backed the LGBT workers.
Tuesday’s oral arguments were the first time the Supreme Court has grappled with questions over gay rights since Justice Anthony Kennedy retired last year. Kennedy, who was appointed under the Reagan administration, authored the majority decision on four major gay rights cases, including the 2015 decision legalizing gay marriage nationwide.
Updated at 2:46 p.m.