With the U.S. Supreme Court having already established a constitutional right to same-sex marriage, you’d think the less controversial issue of protecting LGBTQ employees from discrimination based on sexual orientation would have long been resolved as well. But that issue, which involves statutory interpretation of civil-rights laws, is actually still in a legal limbo. That could soon change now that SCOTUS has agreed to review three cases in this area, two involving discrimination against gay people and a third assessing discrimination against transgender people.
Although 22 states have full or partial bans on employment discrimination based on sexual orientation, the primary federal law regulating employment discrimination, Title VII of the Civil Rights Act of 1964, isn’t so clear. It prohibits discrimination based on “sex,” which has been for the most part defined as “gender.” A 1989 Supreme Court case, however, held that discrimination based on gender stereotypes (e.g., demanding “masculine” or “feminine” behavior or attire from employees) was covered by federal laws, and another in 1998 extended coverage to a man subjected to sexual harassment from other men.
The Second Circuit Court of Appeals recently held that Title VII did cover discrimination based on sexual orientation in the case of a New York skydiving instructor fired for telling a client he was gay, flatly concluding that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” But the 11th Circuit reached the opposite conclusion in the case of a child welfare services coordinator who claimed he was fired for being gay.
So while it’s impossible to know exactly why SCOTUS agreed to take these cases (it takes only four justices to do so), it could simply be in order to resolve conflicting lower-court decisions, without some grand predetermined design of where the Court will move. But as Think Progress’s Ian Millhiser points out, this will be the first big LGBTQ-rights case for SCOTUS since gay-rights pioneer Anthony Kennedy was replaced by Brett Kavanaugh, which creates some grounds for pessimism.
SCOTUS will also review a Sixth Circuit decision holding that Title VII covers discrimination against transgender people, in a case involving a Michigan funeral director. Since this form of discrimination clearly involves gender identity, there may be an especially strong argument for its coverage in gender-focused federal anti-discrimination laws.
The Michigan case also shows why the SCOTUS decision could be particularly momentous: The fired employee was originally supported in her suit by the Obama administration’s Equal Employment Opportunity Commission, which ruled in 2012 that Title VII protected transgeder employees, and in 2015 made the same decision with respect to LGBTQ employees generally. Predictably enough, the Trump administration’s Justice Department has opposed these EEOC precedents, and if not blocked by SCOTUS, the president’s EEOC appointees are sure eventually to rescind them.
These cases, of course, are at a very preliminary stage; having granted a petition for review, SCOTUS will now have to schedule oral arguments, and a decision isn’t likely until next year at the earliest.