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Should Title VII Civil Rights Protections Include the LGBTQ Community?

The Supreme Court is taking on three cases that will determine whether a federal civil rights law regarding workplace discrimination applies to the LGBTQ community.

The law, Title VII of the 1964 Civil Rights Act, prohibits discrimination on the basis of race, color, religion, sex, and national origin. In its existing form, however, the law does not address sexual orientation or gender identity. Lower courts have been divided as to whether the law should include such protections.

The first two cases involve sexual orientation. The two individuals in question, Donald Zarda and Gerald Bostock, both alleged that they were fired from their respective jobs for being gay. Although Zarda died in 2014, the U.S. 2nd Circuit Court of Appeals ruled in his favor in early 2018, finding that discrimination on the basis of sexual orientation is in violation of Title VII. In Bostock’s case, a federal district court in Atlanta and then the 11th Circuit Court of Appeals dismissed the case.

The final case involves Aimee Stephens, a Michigan transgender woman, who was fired from the funeral home where she worked two weeks after she told her boss that she was transitioning. The U.S. 6th Circuit Court of Appeals ruled in Stephens’ favor.

The question is whether the Supreme Court—now with an empowered conservative majority—will side with the plaintiffs and expand the definition of Title VII.

The Trump administration has reversed course from the Obama administration so far, with the Justice Department taking the position that Title VII was not intended to encompass protections for gay or transgender individuals.

“When Title VII was enacted in 1964, ‘sex’ meant biological sex; it ‘refer[red] to [the] physiological distinction[]’ between ‘male and female,’” the Justice Department wrote in an October 2018 brief, concluding that Title VII does not apply to discrimination against an individual based on his or her gender identity.

This position follows the publication of a leaked memo by The New York Times that found the Trump administration was considering rolling back Obama-era protections for transgender people, defining gender as a “biological, immutable condition determined by genitalia at birth.”

The Equal Employment Opportunity Commission, itself a part of the Trump administration, has taken an opposing stance, noting on its website that it “interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.” The EEOC explicitly includes “firing an employee because he is planning or has made a gender transition” among its list of examples of LGBT-related sex discrimination claims.”

But without a national law that explicitly bars sexual orientation or gender identity discrimination, states are permitted to set their own standards.

Twenty-six states are in a federal circuit that have a ruling which “explicitly interprets existing federal prohibition on sex discrimination (under Title VII) to include discrimination based on sexual orientation and/or gender identity,” according to MAP, an LGBT advocacy think tank. Meanwhile, there are also 26 states in which there are “no explicit prohibitions for discrimination based on sexual orientation or gender identity in state law.”

James Esseks, director of the ACLU LGBT & HIV Project, who is representing Stephens and Zarda’s estate, said that a ruling against the individuals in these cases “would be disastrous, relegating LGBTQ people around the country to a second-class citizen status.”

“The LGBTQ community has fought too long and too hard to go back now,” Esseks said, “and we are counting on the justices not to reverse that hard-won progress.”

HRC legal director Sarah Warbelow said this is an opportunity for the Supreme Court to make clear that Title VII does apply to those who identify as LGBTQ.

“The growing legal consensus is that our nation’s civil rights laws do protect LGBTQ people against discrimination under sex nondiscrimination laws,” she said. “The Supreme Court has an opportunity to clarify this area of law to ensure protections for LGBTQ people in many important areas of life. The impact of this decision will have very real consequences for millions of LGBTQ people across the country.”

Alliance Defending Freedom, which is representing Harris Funeral Homes in Stephens’ case, has argued the opposite, saying this is an opportunity to clarify that equating sex with gender identity would undermine equal treatment for women, jeopardize the dignity and privacy of women, and put employers in difficult situations.

“Replacing ‘sex’ with ‘gender identity’ in Title VII should not be taken lightly,” the organization said. “Only Congress has the authority to make such a drastic shift—a change that has widespread consequences for everyone.”

The cases will be argued in the fall with decisions expected by June 2020—as 2020 campaigns are in full swing.