The Supreme Court will hear three cases on Tuesday centered around the question of LGBT workplace discrimination and Title VII of the Civil Rights Act of 1964, which bars sex-based discrimination. The rulings, which will be the first LGBT-related cases heard by the court since the retirement of Justice Anthony M. Kennedy, could determine whether Title VII applies in cases of alleged anti-gay discrimination nation-wide.
A potential precedent for the court involves a 1989 Supreme Court ruling in Price Waterhouse v. Hopkins that discrimination on the basis of gender stereotypes is a form of sex discrimination, as well as an unanimous decision in the 1998 case Oncale v. Sundowner Offshore Services, which protected workers from same-sex discrimination, but requires “neither asexuality nor androgyny.”
The cases, two involving gay men and one involving a transgender woman, will be heard in two hour-long arguments. The two gay plaintiffs, Gerald Bostock and Donald Zarda, argue that they were fired because of their sexual orientation and Federal Appeals Courts subsequently split on the question of whether their firings were prohibited under the Civil Rights Act of 1964.
The 11th Circuit in Atlanta ruled against Bostock, citing a 1979 decision that held that “discharge for homosexuality is not prohibited by Title VII,” while the Second Circuit, in New York came to the opposite conclusion in Zarda’s case, ruling that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”
The argument in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission poses a different question in whether Title VII applies to transgender people. Aimee Stephens was fired from a Michigan funeral home after transitioning to a transgender woman in 2013, and sued for sexual discrimination.
In a ruling from the Sixth Circuit, the court found that Title VII included transgender discrimination, stating “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.”
The court’s decision could determine whether “gender identity” is a protected class under the Civil Rights Act, and could have a major impact on sex-specific bathrooms, fitness standards, and athletic competitions, potentially changing the interpretation of a 1998 decision that forced Virginia Military Institute to admit women. In the majority opinion, Justice Ruth Bader Ginsburg then-argued that the ruling “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.”