The Supreme Court has granted certiorari in three key cases where the issue is whether Title VII of the Civil Rights Act of 1964 protects LGBT individuals from employment discrimination. The cases are Bostock v. Clayton County, Altitude Express v. Zarda, and Harris Funeral Homes v. EEOC.
Bostock and Zarda raise the question of whether Title VII protects gays and lesbians from employment discrimination. In Harris Funeral Homes, the issue the Court agreed to hear is whether that provision protects people who are transitioning from one gender to another. The case, which I wrote about here, also involves issues of religious freedom, but the Court will not consider them.
The three cases will be argued next term. We can expect a decision in June 2020.
The decisions are likely to play a role in the 2020 presidential campaign. If the decisions go against the LGBT position, it may inflame many LGBT individuals against President Trump for appointing Justices Gorsuch and/or Kavanaugh, especially if the administration argues that Title VII does not protect such individuals. If the decision goes in favor of their position, and if Justice Kavanaugh votes that way, it may dampen the enthusiasm of some social conservatives for Trump.
I think it would be marginally better for Trump for the Court to decide these cases this year. However, as I noted here, the Court kept kicking the cases down the road such that they could not be decided until next year.
It’s likely that Kavanaugh could have avoided this delay by voting to grant cert much earlier. It only takes the votes of four Justices for cert to be granted.
However, it looks like Kavanaugh was unwilling to do so. It’s rumored that he wants to “lay low” for a year given the savage battle over his confirmation. Perhaps putting off the cert grant in the three contentious LGBT rights cases was part of such a strategy.
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