On October 8, the Supreme Court of the United States (SCOTUS) will hear oral arguments in three cases to determine whether LGBTQ people are protected from workplace discrimination by Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, and national origin.
The Court will ultimately decide whether the definition of “sex” in Title VII includes sexual orientation and/or gender identity – despite numerous legal precedents supporting that it does.
The opportunity for judges to weigh in on this politically sensitive issue will come after they hear the consolidated oral arguments for Altitude Express v. Zarda and Bostock v. Clayton County, two cases brought by employees who contend that their sexual orientation led to their dismissal.
The employees claimed that their dismissal violated Title VII of the Civil Rights Act of 1964.
But exactly because the statute was written in 1964, its language does not specify legal protection for employees fired because of their sexual orientation. The employers, therefore, countered that when Congress passed Title VII more than a half-century ago, it never intended that the law prohibit discrimination based on other categories like sexual orientation.
Another case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, will also provide an opportunity for the justices to weigh in on transgender rights.
In this case, a funeral home employee who was assigned male at birth was hired in 2007 and then fired in 2013 after revealing plans to live as a woman. The funeral homeowner, a “Christian”, testified that he fired the employee because “[he] wanted to dress as a woman.”
When the employee filed a complaint with the Equal Employment Opportunity Commission, asserting that discrimination based on gender identity violated Title VII, the commission agreed. But the US Court of Appeals for the Sixth Circuit reversed a lower court decision in favor of the funeral home.
The Supreme Court agreed to rule on the matter.
The justices must decide whether Title VII bars discrimination against transgender employees “based on 1) their status as transgender or 2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).”
The Price Waterhouse ruling made it possible for workers to sue their employers for gender stereotyping as a form of sex discrimination.
“We already live in a world where people who don’t fit societal conventions of gender expression are subject to stigma, discrimination, verbal and physical abuse, and even being killed for who they are,” Charles King, co-founder and CEO of Housing Works, said in a statement provided to Outrage Magazine. “This is compounded for our transgender, non-binary and gender non-conforming brothers, sisters, and siblings. We are mobilizing this action because we are deeply concerned and angered that the gates could be opened to losing rights and protections in the workplace, in education, healthcare, the military, and beyond.”
“This is a potentially catastrophic development,” said Armen Merjian, senior staff attorney for Housing Works. “If Title VII is found not to include sexual orientation or gender identity, it will be perfectly legal under federal law to discriminate against and even fire members of the LGBTQ community on those grounds. Such a conclusion requires an antediluvian and myopic understanding of discrimination based upon ‘sex’ and would return our country to the dark ages of bigotry and exclusion.”
“Our National LGBTQIA family has been under a series of attacks under this current administration,“ said Kiara St. James, co-founder and executive director of New York Transgender Advocacy Group (NYTAG). “It has been exact and intentional in stripping many recently hard-won protections in the workplace and healthcare. If the court decides it is legal to discriminate against LGBTQ workers, it is Black trans women who will be the most impacted, and it will only increase the national epidemic of violence towards them. October 8th will set the tone as to whether our nation will continue to slide down the abyss of intolerance or begin to push back against it.”
This summer, over 200 corporations in the US, including Apple, Facebook, Uber, Walt Disney and Coca-Cola, wrote to the justices to extend Title VII protections to LGBT employees, saying that uniform rules governing such matters across the country would provide a welcome “consistency and predictability.”