Justices to Weigh Whether Title VII Covers Sexual Orientation, Gender Identity

By Mark Walsh — April 22, 2019 5 min read
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The U.S. Supreme Court on Monday said it would decide whether the main federal job-discrimination law protects workers based on sexual orientation or gender identity, an issue that is significant not only for school employment but also for whether a related federal law would protect students on the same basis.

The justices granted review in two consolidated cases that raise the question about whether the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 encompasses sexual orientation.

Those cases are Bostock v. Clayton County, Ga., (No. 17-1618) and Altitude Express Inc. v. Zarda (No. 17-1623). The two federal appeals courts that ruled in those cases came down on different sides of whether Title VII covers sexual orientation, but the trend among the federal circuits generally has been to recognize that the federal law covers bias involving sexual orientation or gender identity.

The court also granted review in R.G & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission (No. 18-107), which the justices refashioned the question presented as this: “Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.”

The high court’s 1989 Price Waterhouse decision suggested, in a plurality opinion, that an employer’s reliance on sex stereotypes could be evidence of impermissible sex discrimination under Title VII.

The transgender case may be particularly relevant for the widespread legal debate involving whether transgender students are protected under Title IX of the Education Amendments of 1972, which bars discrimination “based on sex” in federally funded schools.

In several cases in which federal courts have held that Title IX protects transgender students, those courts have relied in part on federal appeals court rulings that have interpreted Title VII as covering sexual orientation and gender identity.

The court granted the three Title VII cases after consideration at multiple of its private conferences in recent months. There is a hint on the court’s docket that the eventual Title VII transgender ruling will have an impact with regard to Title IX and transgender student rights.

The justices have repeatedly rescheduled consideration of a pending appeal brought by students who object to a Pennsylvania school district’s policy of allowing transgender students to use restrooms or locker rooms consistent with their gender identity.

A federal appeals court in that case had ruled last year that forcing transgender students to use facilities that match their birth gender was harmful, and it rejected the privacy claims brought by several students who did not want to share restrooms or locker rooms with transgender students.

That appeal, Doe v. Boyertown Area School District (No. 18-658) has been relisted on the Supreme Court’s conference list for this week. The justices could grant or deny review in the student case, but it seems more likely that they will hold on to it while they decide the Title VII transgender case, since some of the legal principles involved are the same for both Title VII and Title IX.

Granted Cases

The R.G. & G.R. Harris Funeral Homes case involves an employee who was born biologically male and known as William Stephens before realizing her female gender identity and becoming known as Aimee Stephens.

She was dismissed by the Michigan funeral home, which said Stephens would be in violation of its sex-specific dress code if she did not wear male dress attire at work. The EEOC sued on Stephens’ behalf, and lost in a federal district court, but won in the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, which held that Stephens was fired because of her failure to conform to sex stereotypes, in violation of Title VII.

The funeral home’s appeal to the Supreme Court put the EEOC and President Donald Trump’s administration in a bit of a pickle. The EEOC has long considered bias based on gender nonconforming behavior to be covered by Title VII. But in October 2017, then U.S. Attorney General Jeff Sessions issued a memo that said Title VII does not cover discrimination based on gender identity.

In the funeral home case, U.S. Solicitor General Noel J. Francisco sought to walk a tightrope by saying in a brief that the administration disagrees with the 6th Circuit court that Title VII covers bias based on sex stereotyping, but that this case was not a good one for deciding the issue because the 6th Circuit is the only federal appeals court to have ruled on that specific issue. (The brief further said that if the court were to take up the Bostock and Altitude Express cases on whether Title VII covers sexual orientation, it should hold the funeral home case for the outcome.)

The first sexual orientation case involves Gerald Bostock, a gay child-welfare services coordinator assigned to the Juvenile Court of Clayton County, Ga. His sexual orientation and involvement with a gay softball league became the target of concern by some court administrators, he charges, and an audit resulted in concerns over Bostock’s handling of county funds, and he was fired. The audit was a pretext for firing him for being gay, Bostock contends.

Bostock sued under Title VII, but both a federal district court and the U.S. Court of Appeals for the 11th Circuit, in Atlanta, held that the federal statute does not cover sexual orientation.

The Altitude Express case involves Donald Zarda, a gay employee of a New York state skydiving company who alleged discrimination by his employer, a skydiving firm, after he was fired. Zarda has since died, and his suit is being carried on by his estate.

The estate lost on the Title VII claim in a federal district court, but the U.S. Court of Appeals for the 2nd Circuit, in New York City, last year revived that claim, holding that “sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

The Trump administration did not file a brief in either Bostock or Altitude Express, but likely will chime in on both sexual orientation cases and anew in the transgender Title VII case before the court hears arguments during its next term.

A version of this news article first appeared in The School Law Blog.

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