WASHINGTON — The Supreme Court justices sounded closely split Tuesday and a bit uncertain over whether to make it illegal under federal law for companies and public agencies to fire employees solely because they are gay, lesbian or transgender, with Justice Neil Gorsuch likely the deciding vote.
"This case is really close," said Gorsuch, President Donald Trump's first appointment to the high court, during oral arguments over whether the 1964 federal ban on discrimination on the basis of "sex" applies to LGBTQ people. He told an ACLU lawyer arguing in favor of a transgender woman who was fired: "I'm with you on the text."
But Gorsuch went on to say that it is a matter for Congress, not the court. "It's a question of judicial modesty," he said.
The exchange summed up much of the two hours of arguments. Several justices suggested that they agreed that firing gays or transgender employees sounded like sex discrimination, which is prohibited by federal law. But others, including most of the conservatives, said Congress in 1964 did not mean to outlaw discrimination based on sexual orientation or gender identity.
The law had been understood for decades as protecting women from being denied jobs or promotions that went to men instead.
But in recent years, the U.S. Equal Employment Opportunity Commission, which enforces the law, decided that it also protects gays, lesbians and transgender employees. It did so by concluding that discrimination based on sexual orientation or gender identity is illegal discrimination because of sex.
U.S. appeals courts in New York and Chicago similarly found that the law applies to gay and lesbian workers, while the Cincinnati appeals court said it applies to transgender people.
The Justice Department argued that the law should not cover gay, lesbian and transgender workers. Noel Francisco, the Trump administration's solicitor general, urged the court to reject the discrimination claims. "Sex and sexual orientation are two different traits," he said. "
But Justice Ruth Bader Ginsburg said the court had repeatedly read the 1964 law to go beyond the problems of the 1960s. She cited the issue of sexual harassment, which did not emerge until the late 1970s.
Justice Samuel Alito took the opposite view. "We will be acting exactly like a legislature," he said, if the court rules now that the 1964 forbids discrimination based on sexual orientation.
It is the first significant gay rights case before the high court since Justice Brett Kavanaugh replaced the retired Justice Anthony Kennedy.
At present, federal anti-discrimination laws do not protect gays, lesbians or transgender workers.