On April 22, the Supreme Court granted certiorari in three cases dealing with the question whether Title VII of the Civil Rights Act of 1963 protects employees from discrimination based on their sexual orientation or trans status. This grant took place after each case was continually rescheduled for conference. The cases were considered at eleven separate conferences.
In Altitude Express v. Zarda, the Court will review a holding by the en banc Second Circuit that Title VII prohibits discrimination based on an employee’s sexual orientation. In Zarda, a New York Skydiving Company dismissed one of its instructors, Daniel Zarda, who brought suit alleging that the basis for the dismissal was his sexual orientation. The Second Circuit held that Title VII, which prohibits discrimination “because of sex” does apply, and that Zarda therefore had properly alleged a valid cause of action.
The Court granted a second case on the same question: Bostock v. Clayton County, Georgia. There the Eleventh Circuit reached the opposite conclusion. In that case, Gerald Bostock, a child welfare services coordinator argued that the County fired him when it discovered he was gay. The County denied that was its motivation, but also moved to dismiss on the ground that Title VII does not cover sexual orientation discrimination. The trial court granted the motion, and the Eleventh Circuit Court of Appeals affirmed, following its precedent. Zarda and Bostock will be consolidated for purposes of argument.
A third case accepted for review raises the question whether Title VII prohibits discrimination based on gender identity or trans status. In R.G. & G.R. Harris Funeral Homes v. EEOC, prior to transitioning and while still presenting as a man, Aimee Stephens had spent several years successfully employed by a small funeral home. Upon notifying the owner that she would be transitioning and would be wearing women’s attire, she was fired in accordance with the employer’s view of “God’s commands.” The EEOC brought suit on Stephens’s behalf, alleging a violation Title VII. The EEOC and Stephens prevailed in the Sixth Circuit Court of Appeals. The Supreme Court granted cert, rephrasing the questions slightly, and will consider whether Title VII bars discrimination against employees because of their transgender status, or as sex stereotyping under the holding of Price Waterhouse v. Hopkins.
The Court’s decision to review these cases threatens to roll back protections already largely avail able to LGBTQ people. Federal courts and agencies have increasingly understood that discriminating against people based on their sexual orientation or the fact that they are transgender amounts to forms of sex discrimination that violate existing federal law. Indeed, the availability of these protections under Title VII and similar sex discirminations has been officially recognized by the ABA. On February 6, 2019, the ABA voted overwhelmingly to pass Resolution 116A, interpreting Title VII to prohibit discrimination based on sexual orientation or gender identity.
Thus, were the Court to retrench to a position permitting discrimination, as a practical matter it would be taking away rights from LGBTQ people that have been established by multiple federal courts, confirmed by the EEOC, advocated by the ABA, and accepted by the overwhelming majority of American people. SCOTUS would be forcing LGBTQ folks back into the closet, at least at work and ultimately in multiple other settings.
Luckily, plaintiffs in these cases have strong arguments. There are a number of reasons to recognize that Title VII prohibits discrimination based on sexual orientation and trans status. First and foremost, the plain language of Title VII demonstrates that the statute should be interpreted to prohibit discrimination based on both sexual orientation and trans status. Specifically, it prohibits discrimination “because of” an individual’s sex. It is impossible to discriminate based on a person’s sexual orientation or trans identity without taking their sex, or perception of it, into account.
In addition, it is well established that discrimination based on sex- related stereotypes is a form of sex discrimination. When transgender people face discrimination because they don’t conform to employers’ expectations about how men and women should look, behave, or identify, that’s sex discrimination. When lesbian, gay, and bisexual people face discrimination because of their sex in relation to the sex of the people they form intimate relationships with, that’s sex discrimination as well.
Finally, it is clear that Title VII should cover gender transition when we understand that the same clause of Title VII prohibits religious discrimination (in the same words) and has long been understood to prohibit discrimination based on religious conversion.
Justices from across the political spectrum, including the conservatives, have been willing to apply arguments like these in other cases. For example, In Oncale v. Sundowner Offshore Services, Justice Scalia wrote for a unanimous Court and held that Title VII bars sexual harassment by one male against another male “because of sex.” In so holding, the Court paid particular attention to the text of the statute, and declined to give it a limited meaning simply because male on male harassment was not the main focus of the enacting Congress. Similar textual analysis here would mean that a decision based on someone’s transgender status or sexual orientation would similarly be “because of sex,” and that conclusion should not be changed because Congress was not thinking specifically of those situations when it enacted the law.
We will see if the increasingly conservative Court of the Trump era has the intellectual integrity to apply a similar rule in this context. Consistent with its view that Title VII prohibits discrimination on these bases, the ABA may be considering filing a brief in these cases.