She continued: "We can't deny that homosexuals are being fired just for who they are". They even went so far as to write in their brief that using someone's preferred pronouns is "prejudicial error" and that "judges are not free to choose to respond with tolerance and understanding".
"If we're going to be expanding the definition of what "sex" covers, what do we do about that issue?"
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.
The Supreme Court heard arguments in three separate related cases, those of Bostock and Stephens as well as the late Donald Zarda, a former NY skydiving instructor whose claim is being pursued by his estate.
The question for the court is whether discrimination against gay or transgender employees constitutes sex discrimination.
"There are transgender male lawyers in this courtroom following the male dress code and going to the men's room and the court's dress code and sex-segregated restrooms have not fallen", Cole said.
The conservative group "Alliance Defending Freedom", which successfully backed a baker who refused to make a wedding cake for a gay couple and whose case ended up before the Supreme Court, has also weighed in on the side of employers. "And that discrimination is because of sex".
During arguments, U.S. Solicitor General Noel Francisco said that ruling ahead of Congress would "deprive the people of the ability to struggle with these issues democratically". It asserts that a transgender woman can be lawfully fired if an employer says she is not a "real" woman, and that a gay man can lose a job for not conforming to an employer's view about "real" men.
"In 1964, those were the days of Mad Men", quipped Karlan at one point. "Most courts didn't find sexual harassment to be actionable" in 1964, she said, until the Supreme Court eventually ruled that Title VII did include sexual harassment. Add Supreme Court as an interest to stay up to date on the latest Supreme Court news, video, and analysis from ABC News. Zarda had sued for lost wages after the skydiving company fired him in 2010 because he was gay. The 2nd Circuit, ruling in Altitude Express v. Zarda, said the employer's firing of parachute instructor Daniel Zarda for acknowledging he was gay did violate Title VII.
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Donald Zarda, a skydiving instructor from NY, and Gerald Bostock, a former child welfare services co-ordinator from Georgia, both say they were fired due to their sexual orientation.
Stephens lost her job when she told Thomas Rost, owner of the Detroit-area R.G. and G.R. Harris Funeral Homes, that she had struggled with gender identity issues nearly her whole life. "The underlying question here is an ongoing one about whether the kinds of civil rights protections put in place in the 1960s should be extended to LGBTQ+ people-that is whether LGBTQ+ people should be seen and treated as full members of their communities, and whether they deserve the protection of the government to ensure that they are".
In the Harris case, Justice Roberts asked if the funeral home's sex-specific dress policy presented discrimination on the basis of sex, or on the basis of Mr. Stephens' transgender status. But Stephens sincerely believed, since a young age, that her gender is female.
"In many ways, this is more fundamental than what was at stake" in the same-sex marriage case, said Ria Tabacco Mar of the powerful American Civil Liberties Union (ACLU).
But in recent years, the U.S. Equal Employment Opportunity Commission, which enforces the law, decided it also protects gays, lesbians and transgender employees.
Protesters were out in front of the building Tuesday morning in anticipation of the arguments.
"They would always misgender me, they would always ride me hard".
So far, most federal appeals courts in the USA have interpreted the law to exclude discrimination against lesbian, gay, bisexual and transgender people.