A Second Circuit court ruling has weighed in on a legal question that’s become increasingly pressing for the LGBTQ community in recent years: does the federal Title VII, which prohibits discrimination on the basis of sex, also apply to cases of discrimination based on sexual orientation? Some high-profile legal arguments on behalf of LGBQ people who have faced employment discrimination have argued that it does; on Monday, the Court of Appeals for the Second Circuit agreed in the case of Zarda v. Altitude Express.
“[A] woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women,” the court’s majority opinion said. “We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”
Right now this ruling applies only to the Second Circuit — Connecticut, New York, and Vermont. These states already have state-level laws that address discrimination on the basis of sexual orientation; that isn’t to say this ruling doesn’t matter to the people who live there, but that the biggest potential consequences of this case may come later down the road. Although the defendants in this case have said they won’t appeal, the increasing reliance upon Title VII for these cases means we could see it appear before the Supreme Court, where the stakes are high. If the Supreme Court deigns to rule on Zarda v. Altitude Express, it will solidify the interpretation of Title VII for the entire nation; if they decide that Title VII doesn’t address sexual orientation, then that legal strategy is compromised across the board as an option for sexual orientation cases going forward; the interpretation is set in stone, at least for our immediate future.
Given the fact that many US states don’t have state-level laws protecting LGBT employees from workplace discrimination — and the fact that under the current administration, new laws addressing it on the state or federal level are unlikely to pass — the push for a reading of Title VII that would mean anti-LGBTQ is already illegal on the federal level is becoming a more dominant strategy. The Title VII strategy has seen some success so far in cases like Hively v Ivy Tech College, where the ruling said “I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman.” The case and language surrounding Zarda v Altitude Express is specific to sexual orientation, not gender identity or trans status, although there are also arguments for an interpretation of Title VII that addresses discrimination against trans and/or gender nonconforming people.
Attorney General Jeff Sessions has already issued a memo saying Title VII doesn’t specifically protect trans people, and the Trump administration has stated they don’t think Title VII applies to LGB people, although a memo from the Department of Justice doesn’t have the same weight as a Supreme Court ruling. Interestingly, in the case of Jameka Evans, the court ruled that she wasn’t protected as a lesbian under Title VII, but thought she would have a better chance to “make a case that she was discriminated against due to gender stereotyping, given her masculine gender presentation.” Title VII has been cited to address cases involving failure to conform to gender norms in past cases; in Price Waterhouse v. Hopkins, an accounting firm was found to be discriminating by not promoting a female employee for essentially having “unfeminine” character traits. Price Waterhouse v. Hopkins was in 1989, however, and there have been few high-profile cases of this legal strategy coming through for gender nonconforming queer or trans folks of late.
The next steps for the role of Title VII for LGBT people aren’t immediately clear; the defendants in Zarda have said they don’t plan to appeal, and the Supreme Court has already refused to hear Jameka Evans’ Title VII case previously. Eventually it seems likely the issue will appear before them; for right now, there’s good new for the Second Circuit and one more data point in the complicated portrait the US legal system is painting of how Title VII functions, and how it could work more expansively.