The U.S. Supreme Court announced on April 22, 2019 that it will decide whether gay, lesbian, and transgender workers are expressly protected under federal civil rights law on the basis of their sexual orientation. The Court granted review of three cases, Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. The first two directly ask whether sexual orientation discrimination is prohibited under federal civil rights law; the third raises the question of whether transgender employees are similarly protected. The Court’s decision to review these cases, and potentially give a definitive answer to whether federal protections against sex discrimination implicitly prohibit sexual orientation and gender identity discrimination, is likely to provide clarity to employers that have faced conflicting decisions from various federal courts around the country. Given the current composition of the Court, the substance and scope of how the Court will decide this matter is hotly debated.

By way of background, Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating against workers on the basis of sex. A critical question for federal courts in recent years has been whether discrimination on the basis of sexual orientation or gender identity is a form of sex discrimination prohibited under Title VII.

Since 2015, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for administering federal civil rights laws, has held that discrimination on the basis of sexual orientation is a form of sex discrimination and thus unlawful. The EEOC has offered three different arguments in support of its position: (1) that “sexual orientation” is, by definition, inseparable from “sex” (i.e., the sexual orientation of a female employee attracted to males is heterosexual, while the sexual orientation of a male employee likewise attracted to males is homosexual – the difference in sexual orientation is based solely on the sex of the subject employee); (2) that discrimination on the basis of sexual orientation is prohibited discrimination on the basis of association (much as discrimination on the basis of an employee’s spouse’s race would be prohibited racial discrimination); and (3) discrimination on the basis of sexual orientation is a form of “sex stereotyping” prohibited under prior Supreme Court case law.

Notably, there is conflict within the Administration on this point. During consideration of the Zarda case in the appeals court,1 the U.S. Department of Justice filed a friend of the court brief arguing that sexual orientation is not discrimination on the basis of sex.2 The Supreme Court’s decision today to hear these cases is likely to resolve this conflict.

In 2017, in the case of Hively v. Ivy Tech Community College, the full U.S. Court of Appeals for the Seventh Circuit (which includes Illinois, Indiana, and Wisconsin) became the first federal appeals court to adopt the EEOC’s reasoning and hold that Title VII prohibits discrimination on the basis of sexual orientation.3 Less than a year later, the Second Circuit followed suit in Zarda, similarly holding that Title VII protects workers from sexual orientation discrimination. In contrast, the Eleventh Circuit, citing binding precedent, held in 2017 that Title VII does not include discrimination on the basis of sexual orientation, thus making the question ripe for consideration by the Supreme Court.4 At that time, the Supreme Court declined to review the Eleventh Circuit’s holding.

With respect to discrimination on the basis of gender identity, there has also been division within the courts. Some courts have allowed cases alleging gender identity discrimination to proceed (most commonly analyzing the case as a question of “sex stereotyping” as discussed above); others have held that transgender status is not protected under Title VII. The EEOC has held since 2012 that discrimination on the basis of gender identity is unlawful under Title VII. In 2018, the Sixth Circuit held in the Harris Funeral Homes case that discrimination on the basis of transgender status is prohibited under federal law. Again, in this case, the Department of Justice took the opposite view, arguing that “sex discrimination” under the law does not include discrimination on the basis of gender identity.