Activists in Pennsylvania have long failed to get the state to pass a law prohibiting employers from firing someone for being gay or transgender.
Now, it’s up to the U.S. Supreme Court to decide.
The high court on Tuesday will consider whether sexual orientation and gender identity are protected from discrimination under the Civil Rights Act of 1964. How the court decides could have a seismic effect for the more than nine million LGBTQ Americans, particularly in the 29 states without laws prohibiting discrimination on the basis of sexual orientation or gender identity.
That includes Pennsylvania, home to about 400,000 LGBTQ people.
It also represents the first major LGBTQ case the court will hear since the retirement of Justice Anthony M. Kennedy, who leaned conservative but sided with liberal justices in deciding multiple LGBTQ rights cases.
Here’s a look at the cases the Supreme Court is hearing and how its decision could impact Pennsylvanians.
What’s the Supreme Court considering?
Title VII of the 1964 Civil Rights Act prohibits employment discrimination on the basis of race, color, religion, sex, and national origin. The Supreme Court must decide what the word sex means.
The court will hear arguments in three cases, two of which argue that sexual orientation should be considered a subset of sex, and a third, filed by a transgender person, arguing the same but for gender identity.
Defendants say sexual orientation and gender identity are not subsets of sex, and therefore aren’t protected classes. The Trump administration agrees, pointing out in an amicus brief that Congress has, every year since 1975, declined to enact bills seeking to add sexual orientation to the list of protected traits.
“The ordinary meaning of sex is biologically male or female,” administration lawyers wrote. “It does not include sexual orientation.”
How might the justices decide, and when?
The Supreme Court expanded gay rights in four major cases, including the Obergefell v. Hodges case that made marriage equality the law of the land in 2015.
But each of those cases was a constitutional issue. These cases are about the interpretation of an existing law, one that could be changed by Congress under the normal legislative process, not needing a constitutional amendment. Lisa Tucker, an expert on the Supreme Court and a professor in Drexel University’s Kline School of Law, said that difference could prove important: The court may say Congress has had ample opportunity to make this the law but hasn’t, effectively deferring to the legislative system.
Most important, she said, the makeup of the court has drastically changed since Obergefell. The court didn’t just lose Kennedy — it gained Justices Neil Gorsuch and Brett Kavanaugh. Both are seen as conservative. The court now has five justices nominated by Republican presidents and four by Democrats.
Mary Catherine Roper, deputy legal director at the ACLU of Pennsylvania, said the court could also say sexual orientation and gender identity fall under a decision the Supreme Court made 30 years ago. In deciding Price Waterhouse v. Hopkins in 1989, the court clarified that Title VII also prohibits discrimination based purely on gender stereotyping, for example, not being “the right” kind of man or woman.
The court could also differ on sexual orientation and gender identity, meaning that it could decide one is protected from discrimination while the other isn’t.
Tucker said it could be spring or summer until the court issues an opinion on these cases. She said justices will likely substantially disagree, meaning there could be months of opinion circulating, editing, and bargaining.
How will the decision impact New Jersey and Pennsylvania?
New Jersey amended its anti-discrimination law in 1991 to include sexual orientation as a protected class and again in 2006 to include gender identity. That wouldn’t change no matter how the court rules.
Pennsylvania is more complicated. The state’s Human Relations Act — like the federal Civil Rights Act — simply says a person can’t be discriminated against on the basis of sex, and state courts haven’t determined whether the act applies to sexual orientation or gender identity, said Lee Tankle, a labor and employment lawyer at Pepper Hamilton in Philadelphia.
However, more than 50 municipalities, including Philadelphia and Pittsburgh, representing more than half the population of Pennsylvania, recognize sexual orientation and gender identity as protected from discrimination.
In addition, state employees are protected from discrimination based on sexual orientation under an executive order signed by Gov. Milton Shapp in 1975 (the first in the nation). Gov. Ed Rendell extended those protections to transgender state employees through a 2003 executive order.
If the court rules that Title VII does protect this class of people, that would prohibit employers everywhere from discriminating against someone based on sexual orientation or gender identity (though Title VII does include room for some religious exemptions). If the court rules that federal law does not protect LGBTQ people, the status quo in Pennsylvania would remain.
And what is the status quo?
Right now, if LGBTQ people believe they were discriminated against, they can file a complaint with local officials if the municipality they are in has such anti-discrimination protections. For example, a Philadelphian could file a complaint with the city’s Commission on Human Relations, which could investigate and give the go-ahead to file a lawsuit.
If a person lives in a municipality without that protection, there’s still another option: The state Human Relations Commission issued guidance last year that it would also accept claims of discrimination on the basis of sexual orientation and gender identity. It can similarly issue a recommendation to sue.
That’s just a recommendation, though, and doesn’t carry the weight of law, Tankle said. A judge wouldn’t be required to recognize LGBTQ people as a protected class unless state law changed or the Supreme Court rules they are covered under federal law.
Roper said if the court doesn’t rule in favor of furthering LGBTQ protections, “people in Pennsylvania would turn more to our state laws because ... we have no obligation to follow the federal interpretation of these words.” Tucker said states can always grant more freedoms than the federal government, but not fewer.
“No one should be afraid that they’re going to be unable to support themselves and their family just because of who they are,” Roper said. “The law should clearly protect people to earn a living.”