As a gay man and an employment law specialist, I have long been interested in the issue of whether Title VII’s prohibition against sex discrimination also protects employees from discrimination based on their sexual orientation or gender identity. Since as far back as 2004, at least one federal circuit court (the Sixth Circuit) has held that transgender employees are clearly protected. More recently, two circuit courts (the Second and the Seventh) have held that Title VII ostensibly protects gays and lesbians.
Notwithstanding a clear circuit split, the United States Supreme Court refused to address the issue even when it was given an opportunity to do so back in 2017. Yesterday, the Court finally granted review in three LGBTQ discrimination cases: a ruling of the 2nd Circuit in favor of a skydiving instructor who was fired because he was gay; a contrary ruling from the 11th Circuit finding that a lesbian could not sue under Title VII because of her sexual orientation; and a third decision from the 6th Circuit in favor of a transgender funeral director who was fired after informing her boss she intended to transition.
There was plenty of apprehension from gay rights activists the last time – in 2017 – that the Supreme Court considered whether to take up this issue. At that time, the consensus among court watchers was that Justice Kennedy would again be the deciding vote as he had with other landmark gay rights cases such as Obergefell, the 2015 gay marriage case, although there was some concern that Kennedy might be more conservative when addressing a statutory issue as opposed to a constitutional one. I suspect that there is even greater apprehension this time around, since there is little evidence that either of the two justices who have joined the court since 2015 has shown any support for gay rights issues.
No matter how the Court decides these cases – and it could decide the third one differently from the first two – there may be political implications as well since these decisions are likely to be issued in the midst of the 2020 presidential campaign. If the Court interprets Title VII narrowly, a future Congress or president could simply change the statute.