Justice Alito noted that Congress had had the opportunity to write sexual orientation into the country’s nondiscrimination statutes but had repeatedly failed to do so. In fact, he added, such legislation is stalled in Congress now. If the court indeed found that sexual orientation was covered under the 1964 law, he said, it would open itself up to the criticism that it was “acting exactly like a legislature.”
The lawyer who argued on behalf of the employers, Jeffrey M. Harris, opened his argument by noting that if Congress had meant to cover L.G.B.T. people, there would have been no need for states to address the question in their own laws, which some two dozen have done.
“Sex and sexual orientation are distinct and independent characteristics,” he said. “That’s just as true today as it was in 1964.”
Employment discrimination based on sexual orientation and gender identity is legal in most of the nation. When it issues an opinion in the case, the court will decide whether Title VII of the Civil Rights Act of 1964, which bars discrimination based on sex, also covers bias against gay and transgender people. If they rule that it does, such protections would be available nationwide.
Most federal appeals courts have interpreted Title VII to exclude discrimination against lesbian, gay, bisexual and transgender people. But two of them, in New York and Chicago, recently issued decisions ruling that discrimination against gay men and lesbians is a form of sex discrimination.
The Supreme Court considered three cases on Tuesday in two hourlong arguments. The first, which Ms. Karlan argued, stems from a pair of lawsuits from gay men who say they were fired because of their sexual orientation. The second is based on a suit from a transgender woman who said her employer fired her when she announced that she would embrace her gender identity at work.
The cases concerning gay rights are Bostock v. Clayton County, Ga., No. 17-1618, and Altitude Express Inc. v. Zarda, No. 17-1623. The first was brought by Gerald Bostock, a child welfare services coordinator in Georgia who said he was fired after joining a gay recreational softball league. The United States Court of Appeals for the 11th Circuit, in Atlanta, ruled against him in a short, unsigned opinion that cited a 1979 decision that had ruled that “discharge for homosexuality is not prohibited by Title VII.”