Yesterday, the United States Supreme Court decided that it will hear three cases in its next term, which, taken together, will test the textual boundaries of Title VII with respect to the meaning of sex discrimination. In this trio of cases, advocates for LGBT employment rights ask the Court to find that Title VII’s prohibition against sex discrimination includes both claims of sexual orientation discrimination and gender identity discrimination – a logical extension, they say, in light of the Court’s jurisprudence on gender-based discrimination and an evolution of understanding about gender.
After the Second Circuit reversed its precedent in favor of a broader reading of Title VII, the Eleventh Circuit declined to do so, creating what we lawyers call a “circuit split” and teeing the controversy up for Supreme Court review. It is not a surprise to most lawyers that the Supreme Court decided to take up these cases this term, but we cannot predict with any degree of certainty how the justices will rule. There are three plausible outcomes: (1) a majority of the Court will agree that sex discrimination includes sexual orientation and gender identity discrimination; (2) a majority will find that gender identity discrimination is prohibited, but that reading sexual orientation discrimination into the statute is too much of a textual stretch; or (3) a majority will find that the term “sex” is to be read very narrowly and means only what it meant in the minds of the statute’s drafters in 1964 – “biological sex,” as some call it.
Two federal circuits – the Seventh, and then the Second – have ruled within the past two years that sexual orientation discrimination is a form of sex discrimination, and thus unlawful. That means that, in those circuits, an employee may assert claims of discrimination based upon their identity as gay, lesbian, or bisexual. Many more circuits – some for a number of years now (including the Eleventh) – have recognized that discrimination against transgender individuals constitutes sex discrimination because the Court made clear in 1989 that discrimination based on nonconformity with gender norms is, per se, sex discrimination. But it is the Sixth Circuit’s decision last year in a case brought by the EEOC that delivered a particularly strong message that transgender discrimination is unlawful, going so far as to fully reject the employer’s defense invoking an asserted religious liberty to discriminate.
We will follow these cases closely and provide updates along the way, including analysis of the Court’s ultimate decision, which is expected sometime next term, and most likely in the spring of 2020. Regardless of the outcome, it is still wise for employers to maintain policies and practices that broadly prohibit discrimination and to ensure employment opportunity on the basis of merit and performance alone. Indeed, many states and localities prohibit discrimination on the basis of sexual orientation and gender identity, and those prohibitions will remain in place notwithstanding a narrow reading of Title VII.