Supreme Court wrestles with LGBT employment discrimination and meaning of 'sex'

The justices focused on implications of their decision on bathrooms, sports.

The Supreme Court on Tuesday wrestled openly for the first time with employment discrimination against gay, lesbian and transgender Americans, at times seeming inclined to find that they are protected from discrimination under federal law but also showing discomfort with the potential implications of a sweeping decision.

The court heard arguments in three cases involving individuals who say they were fired because of their sexual orientation or gender identity. The plaintiffs argued that the plain text of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex, applies to them.

“When an employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII,” argued Pamela Karlan, counsel for former Georgia child welfare services coordinator, Gerald Bostock, who says he was fired for being gay.

“The employer has … discriminated against the man because he treats that man worse than women who want to do the same thing,” said Karlan, “and that discrimination is because of sex.”

The argument was intended to appeal to the court’s conservative majority, which for years has professed an obligation to strict interpretation of a statute’s text.

In the case of Aimee Stephens, a transgender Michigan woman who was fired from her job at a funeral home after notifying her employer of her gender identity, Justice Elena Kagan suggested the application of the law was clear.

“The claim here is that Harris Homes is treating her differently because the sex assigned at birth. That’s discrimination because of sex,” Kagan said.

When counsel for the funeral home, John Bursch, argued that the firing was because of a dress code that was equally applied to all employees, Justice Neil Gorsuch seemed open to siding with Stephens. “Isn’t sex also at play here, and isn’t that enough?” he said of federal anti-discrimination rules.

Justice Samuel Alito was publicly skeptical, suggesting the meaning of ‘sex’ in 1964 when Congress wrote the law should not be dismissed.

“You’re trying to change the meaning of what Congress understood as ‘sex’ in 1964,” said Alito, challenging the plaintiffs.

“In 1964, those were the days of Mad Men,” quipped Karlan at one point.

“If the Court takes this up and interprets this 1964 statute to prohibit discrimination based on sexual orientation, we will be acting exactly like a legislature,” Alito said.

Justice Ruth Bader Ginsburg pointed out that the court has already adopted a more expansive view of discrimination protection on the basis of sex in the years since Congress passed the law.

“No one thought sexual harassment was a thing in 1964,” she said. But the court now recognizes that Title VII prohibits sexual harassment. As several justices noted during the argument, the court has also held that Title VII prohibits "sex stereotyping," as well as same-sex sexual harassment.

In a 1989 case, the court ruled in favor of a female accountant who was denied a promotion because she was viewed as not conforming to her employer's expectations about how women should talk, dress, and behave. All of the plaintiffs argued that that case provides important support for their position.

Over two hours of arguments, the justices seemed most preoccupied with the implications of their decision in this case and what it would mean for intense national debate over bathroom facilities for transgender people and participation of transgender athletes in sex-separate collegiate sports.

“There are male and female bathrooms, there are dress codes that are otherwise innocuous -- most people would find them innocuous,” said Gorsuch. “But the affected communities will not, and they will find harm.”

“Assume it’s close,” he said later. “At the end of the day, should we take into account the massive social upheaval and legislative history?”

Chief Justice John Roberts raised concern about religious organizations and their concerns with employing gay, lesbian and transgender people.

“If we're going to be extending the understanding of what sex encompasses,” said Roberts, “how do we address that other concern” of religious exemptions?

“There’s no upheaval,” argued David Cole, attorney with the ACLU, defending Stephens. Religious exemptions, he said, already exist under federal law.

Cole and attorneys for the plaintiffs urged the justices to rule narrowly, saying implications for bathrooms and sports could be dealt with later in future cases.

“We’re not asking you to update the statue or redefine sex,” Cole said. We’re asking you to recognize “that transgender people have the right to be in a workplace because of who they are.”

While the three cases were consolidated for argument, the court could offer split opinions in the cases involving sexual orientation and gender identity or could find that Title VII applies to both categories, on the basis of "sex."

The justices are expected to release their opinion in early 2020.

ABC News' Kate Shaw contributed to this report.