Today the Supreme Court announced it will be deciding on an interpretation of federal law Title VII, and specifically whether the law should be understood as supporting workplace protections for LGBT employees on the basis of their sexual orientation or trans status.
Title VII is part of the Civil Rights Act of 1964 and speaks to employment discrimination, outlawing discrimination against an individual “on the basis of race, color, religion, sex or national origin” or “because of his or her association with another individual of a particular race, color, religion, sex, or national origin, such as by an interracial marriage.” That’s fairly broad legal language, and has been interpreted in various shifting ways since 1964 — for instance, in the 1980s it was used to legally address sexual harassment in the workplace as a form of gender-based discrimination. In recent years, LGBT activists have also argued that it should apply to gay and trans employees, and that anti-LGBT discrimination in the workplace is inextricably linked to gender on a legal basis.
Back in 2012, the Equal Employment Opportunity ruled that trans employees are protected against discrimination by Title VII; since then, the Second Circuit Court has agreed and also ruled that it includes protections for LGB employees. Title VII was the foundation of Kimberly Hively’s court case regarding being discriminated against as a lesbian at work, and that of Jameka Evans, a gender nonconforming lesbian. This interpretation was also upheld in the case of Zarda v. Altitude Express, in which the Second Circuit Court agreed that Donald Zarda’s former employer discriminated against him on the basis of sexual orientation and that this was prohibited by Title VII.
Zarda’s case is now one of those that the Supreme Court will be considering as it decides what Title VII means for queer and trans people; it will also be looking at Bostock v. Clayton County, Georgia, a 1979 case in which a court decided that Title VII did not “prohibit ‘discharge for homosexuality.'” In terms of assessing Title VII’s meaning for trans employees, which SCOTUS appears to be treating as a related but separate legal question, SCOTUS is considering R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a case in which a trans woman was fired after coming out at work. At the time of that case’s original ruling, the United States Court of Appeals for the Sixth Circuit said “It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex,” neatly summarizing the legal argument for Title VII’s relevance to trans people. Speaking to the overlapping understandings of Title VII’s relationship to gender, gender presentation, and sexual orientation, the Harris Funeral Homes case was also decided based on an argument based on stereotyping of the plaintiff’s gender presentation, or “the funeral home’s perception of how she should behave or appear based on her sex.”
It’s legitimately a confusing legal discourse; in short, the court will essentially be deciding whether the law’s stance on gender discrimination means that 1) LGB people are protected based on their gender as juxtaposed with the gender of their romantic partner/s or potential partner/s, 2) LGBT people are protected based on the expression of their gender and nonconformity in gender presentation as related to their gender as assigned at birth, whether that’s gender nonconforming lesbians like Jameka Evans or trans people expressing their gender authentically, and 3) whether trans people are protected based on their transgender identity specifically, as a legal category separate from gender expression or presentation but fundamentally linked to gender. The court could, as I understand it, decide that any combination of these interpretations are correct or not.
The ruling will have hugely far-reaching effects for LGBT people in the US and the legal possibilities for our rights to work free of discrimination. If the court rules against the LGBT-inclusive interpretation, there will be essentially nothing enshrined in federal law that protects LGBT employees at work, and we will instead be reliant on the goodwill of states or individual companies to write and enforce LGBT anti-discrimination policies. The fact that the Trump administration has been able to fill two openings on the Supreme Court with right-leaning judges means it’s hard to be optimistic about the outcome here; previous SCOTUS Justice Anthony Kennedy might well have ruled for the pro-LGBT interpretation, but his replacement with Trump pick Brett Kavanaugh means the court as a whole is right-leaning, and will be dicey at best for LGBT issues for quite some time. The ruling on this decision will come by June 2020.