Oct. 9 (UPI) — The Supreme Court appeared divided on Tuesday after hearing arguments regarding whether current federal law barring employment discrimination on the basis of sex includes gay and transgender people.
By next year, the Supreme Court will decide whether Title VII of the Civil Rights Act of 1964 protects people against discrimination based on their gender identity, which could have wide-ranging implications on current protections for the LGBTQ community and employment.
The court heard arguments in the case of a transgender employee who was fired from a Detroit-area funeral home after informing the owner of plans to transition from male to female and began dressing as a woman, and the firings of two gay men in Georgia and New York.
The court’s four liberal justices denounced the firings and clearly stated that all three should be protected by a statutory ban on sex discrimination.
Justice Samuel Alito said that including sexual orientation in Title VII is “a different policy issue from the one that Congress thought it was addressing in 1964,” but Justice Ruth Bader Ginsburg countered by noting Congress also hadn’t considered sexual harassment at the time, but courts later ruled it should be prohibited by civil rights law.
Justice Sonia Sotomayor questioned at what point the court can continue to allow invidious discrimination.
“We can’t deny that homosexuals are being fired just for who they are,” she said.
Justice Neil Gorsuch, who was appointed by President Donald Trump, said the “massive social upheaval that would be entailed in such a decision” would be best decided by Congress.
“It’s a question of judicial modesty,” he said.
The Alliance Defending Freedom, the conservative firm representing the funeral home owner, has argued that it is up to Congress to determine if sexual orientation and gender identity should be protected under the civil rights law and not the courts.
“The argument that we have made, and that a number of lower courts have accepted, is that discrimination on the basis of sexual orientation and discrimination on the basis of transgender status are essentially subsets of sex discrimination,” said David Cole, legal director of the American Civil Liberties Union, which is defending the plaintiff.
Meanwhile, U.S. Capitol Police removed two suspicious packages from in front of the Supreme Court in Washington, D.C., Tuesday morning as arguments were set to begin in the case.
Supreme Court spokeswoman Kathy Arberg said the packages were found close to the building, near the intersection between the court, the Capitol and the Library of Congress at about 8 a.m.
Police cleared protesters from around the building after the packages were located, forcing authorities to close some streets in the immediate vicinity around the Supreme Court. The packages were eventually removed without incident.
Authorities said they did not have to evacuate the Supreme Court itself and things returned to normal by 10 a.m.