On Monday, the Supreme Court announced that it would hear several cases deciding whether federal protections apply to LGBT people—specifically, Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of "race, color, religion, sex or national origin."
For each of these cases, the issue revolves around the meaning of one word in that list: sex. As writer Rebecca Buckwalter-Poza explained in Pacific Standard:
The Supreme Court established the current frame for reviewing sex discrimination claims nearly 30 years ago. In 1989, in Price Waterhouse v. Hopkins, the Supreme Court ruled that sex stereotyping—i.e., imposing expectations about how persons should act based on sex—constitutes gender and sex discrimination under Title VII, the workplace analog to Title IX that prohibits employers from discriminating on the basis of sex. A later Supreme Court decision clarified that Title VII covers all discrimination motivated by sex, including acts perpetrated against someone of the same sex.
Ever since, plaintiffs have asked the courts to consider whether sex-based discrimination includes anti-LGBT discrimination. Now, the Supreme Court has a chance to settle that question, starting with two discrimination lawsuits: Altitude Express Inc. v. Zarda and Bostock v. Clayton County, in which two employees allege they were fired because of their sexual orientation. The justices also agreed to decide whether Title VII applies to discrimination against transgender people based on their status or sex stereotyping.
How have different legal bodies already interpreted this framework, and what can we expect in the future?
Equal Employment Opportunity Commission
This federal agency has been at the forefront of the push to extend protections under Title VII to gay, transgender, and non-binary people. According to a court order, the EEOC argued that "sexual orientation is inherently a sex‐based consideration" for the first time in 2015.
Lawyers for the EEOC have continued to argue that gay employees should be protected under Title VII: In Altitude Express Inc. v. Zarda, lawyers for the EEOC sided with the plaintiff, now-deceased sky-driving instructor Donald Zarda, arguing that he faced gender discrimination stemming from the stereotype that people are attracted to the opposite sex, Kate Wheeling reported for Pacific Standard.
In keeping with its proposed rollbacks of LGBT protections, the Trump administration has opposed efforts to extend Title VII to gay and transgender employees. In response to Altitude Express Inc. v. Zarda, the Department of Justice filed a brief urging the Second Circuit Court of Appeals to rule in favor of Zarda's employer. Department of Justice lawyers stated that "the EEOC is not speaking for the United States and [its] position about the scope of Title VII is entitled to no deference beyond its power to persuade," according to the non-partisan Constitution Center.
Appellate and District Courts
Although many appellate and district courts have excluded LGBT people from Title VII protections, according to the New York Times, some have applied the ruling on sex discrimination in cases involving an LGBT plaintiff. Most recently, the Second Circuit Court of Appeals in New York held that "Zarda is entitled to bring a Title VII claim for discrimination based on sexual orientation."
But in Georgia, in the second case taken up by the Supreme Court, the Eleventh Circuit ruled that it could not overturn a previous ruling that "[d]ischarge for homosexuality is not prohibited by Title VII."
The Supreme Court has declined to take cases deciding the sex discrimination question in the past. Now that the court has decided to take up the question, it's clear that this is not the same court that legalized same-sex marriage in 2015: Independent policy groups have noted that conservative Justice Neil Gorsuch has a record of ruling against protections for LGBT communities; meanwhile, Justice Brett Kavanaugh raised flags for LGBT advocates when he punted on a same-sex marriage question in his confirmation, the Washington Post reports.