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How the Supreme Court's decision to hear cases on LGBTQ discrimination affects religious freedom

SALT LAKE CITY — Lawmakers and legal experts disagree on whether federal nondiscrimination laws protect gay, lesbian and transgender workers. Now, the Supreme Court is taking the decision out of their hands.

Justices announced Monday that they will hear three cases involving employment discrimination claims this fall. Two feature gay men who were fired soon after their employers learned of their sexual orientation, and the third involves a transgender woman who was let go soon after her transition.

The Supreme Court's eventual rulings will hold significant consequences for LGBTQ employees and their employers, including people of faith, legal experts said.

"The stakes here are huge," wrote James Esseks, director of the ACLU's Lesbian, Gay, Bisexual, Transgender and HIV Project, in a blog reacting to the Supreme Court's announcement.

If justices rule that "sex discrimination" includes sexual orientation and gender identity-based discrimination, religiously affiliated businesses or schools could face lawsuits if they refuse to hire gay or transgender employees. But if the rulings go the other way and limit the scope of sex discrimination protections, LGBTQ workers may have no legal recourse to being fired or mistreated.

The National Center for Transgender Equality and the Human Rights Campaign gather on Pennsylvania Avenue in front of the White House in Washington, Monday, Oct. 22, 2018, for a #WontBeErased rally. (AP Photo/Carolyn Kaster)
The National Center for Transgender Equality and the Human Rights Campaign gather on Pennsylvania Avenue in front of the White House in Washington, Monday, Oct. 22, 2018, for a #WontBeErased rally. (AP Photo/Carolyn Kaster)
Carolyn Kaster, Associated Press

More than 15 states currently offer no employment protections for LGBTQ residents, and 12 protect only public workers, according to the Human Rights Campaign.

The Supreme Court cases center on Title VII of the 1964 Civil Rights Act, which "prohibits employment discrimination based on race, color, religion, sex and national origin." Traditionally, sex discrimination claims have involved unequal treatment of male and female employees or mistreatment of pregnant workers.

Amid rising support for LGBTQ rights, advocacy groups like the American Civil Liberties Union have worked to broaden this legal interpretation. They've argued with mixed results that Title VII also protects gay, lesbian and transgender workers, who aren't mentioned in the statute.

"The U.S Court of Appeals for the 2nd Circuit, based in New York, and the 7th Circuit, based in Chicago, have ruled that sex discrimination laws protect gays and lesbians. The 11th Circuit, based in Atlanta, has said they do not. And the 6th Circuit, based in Cincinnati, has said transgender people are protected," USA Today reported.

President Barack Obama and his administration embraced a broad definition of sex discrimination, defending LGBTQ workers in court. President Donald Trump's team, on the other hand, argues that sex discrimination does not include discrimination based on sexual orientation or gender identity.

"In October of 2017, (then-Attorney General) Jeff Sessions put out a memo directing Justice Department lawyers not to take the position that transgender discrimination is a form of sex discrimination," said Ria Tabacco Mar, a senior staff attorney with the ACLU, to the Deseret News last year.

Many who reject the broader interpretation of sex discrimination say it should be policymakers, not judges, who create new protections for LGBTQ workers.

"Neither government agencies nor the courts have authority to rewrite federal law by replace 'sex' with 'gender identity,'" said John Bursch, an attorney for the Alliance Defending Freedom, which often represents religious conservatives in court, to the The Associated Press.

However, legislative efforts rarely overcome partisanship. Only 10 of the 37 LGBTQ rights bills considered by state legislatures last year had bipartisan sponsorship, according to a Deseret News analysis.

Currently, 21 states, including Utah, and Washington, D.C., prohibit sexual orientation or gender identity-based employment discrimination, according to the Human Rights Campaign. An additional eight states protect only public employees from these forms of discrimination.

The Equality Act, which is before Congress right now, would outlaw discrimination based on sexual orientation or gender identity nationwide. Although two Republicans, one in each chamber, joined the crowd of Democrats promoting the measure, few policy experts expect it to pass the Republican-controlled Senate.

The debate surrounding the Equality Act illustrates how new protections for LGBTQ Americans can clash with religious freedom laws. If it passes, religiously affiliated schools and other faith-based organizations could face lawsuits for refusing to hire gay workers or limiting which facilities transgender students can use, even if these policies were tied to religious beliefs.

"There would be an effort to punitively sue them into oblivion," said Tim Schultz, president of 1st Amendment Partnership, to the Deseret News last month.

Religious freedom initially played a role in one of the three cases the Supreme Court will hear, R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. The funeral home's owners argued that federal religious freedom protections guaranteed their right to fire a transgender worker for religious reasons, but they dropped this claim when they appealed to the Supreme Court and are focusing instead on the scope of Title VII.

All three employment discrimination cases will be argued next term, which begins in October. Decisions will likely come before the end of June 2020.