SCOTUS to decide if Title VII ‘sex’ discrimination extends to sexual orientation and gender identity

Over the years I have posted that The time has come to amend the Arizona Civil Rights Act to include sexual orientation and gender identity (December 2017):

The Arizona Civil Rights Act does not provide for express protections for sexual orientation and gender identity. A bill has been introduced in the Arizona legislature every year since at least 1994 to add sexual orientation and gender identity to the Arizona Civil Rights Act but only once, to the best of my recollection, has a bill ever received a committee hearing. It has always been opposed by GOP leadership, because it is opposed by the religious right Center for Arizona Policy.

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It should be noted that the federal Civil Rights Act of 1964, as amended, also does not provide for express protections for sexual orientation and gender identity.

Earlier this year the 7th Circuit Court of Appeals in an 8-3 decision, ruled for the first time, that the federal Civil Rights Act of 1964, as amended, extends to sexual orientation, marking a major workplace victory for gays and lesbians. Federal appeals court: Civil rights law covers LGBT workplace bias:

“It is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,” Chief Judge Diane Wood wrote for the majority. “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

Earlier this month the U.S. Supreme Court rejected an appeal from the 11th Circuit Court of Appeals, leaving a split among the circuits. Supreme Court won’t hear LGBT job discrimination case. The 11th Circuit held that the fight belonged in Congress, which “has not made sexual orientation a protected class.”

The U.S. Supreme Court is widely expected to hear such a case in the near future because federal appeals courts are split on whether workplace discrimination laws protect sexual orientation.

The future has finally arrived. German Lopez reports at Vox.com, “The U.S. Supreme Court on Monday agreed to take a trio of cases that will, collectively, help decide the future of gay and transgender rights in America.” The Supreme Court just took up a set of very big cases on LGBTQ rights:

The Court agreed to hear three cases that have to do with whether existing federal bans on sex discrimination in the workplace also prohibit discrimination based on sexual orientation or gender identity. In the consolidated Altitude Express Inc. v. Zarda and Bostock v. Clayton County, Georgia, a skydiving instructor and a child welfare services coordinator, respectively, said they were fired for being gay. And in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, a funeral home employee said she was fired because she came out as transgender.

The Equal Employment Opportunity Commission (EEOC), a federal agency, has said that Title VII of the Civil Rights Act prohibits workplace discrimination based on sexual orientation and gender identity. The law [Title VII] doesn’t explicitly prohibit anti-gay or anti-trans discrimination, instead banning discrimination based on sex. But advocates argue that bans on sex discrimination should cover anti-gay and anti-trans discrimination as well, because discrimination based on sexual orientation and gender identity is fundamentally rooted in expectations about a person’s sex.

Some lower courts have agreed with the stance. In R.G. & G.R. Harris Funeral Homes v. EEOC, for instance, the Sixth Circuit Court of Appeals declared, “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.”

But some courts have also ruled against LGBTQ rights — like the 11th Circuit Court’s ruling that “discharge for homosexuality is not prohibited by Title VII.” President Donald Trump’s administration has also argued that Title VII doesn’t prohibit discrimination based on sexual orientation or gender identity.

The Supreme Court will now settle the question. It’s unclear how they’ll rule: The Court now has a likely conservative majority on these issues, since former Justice Anthony Kennedy — a strong ally of LGBTQ rights, despite his largely conservative record — retired in 2018. That could be bad news for LGBTQ rights.

Most states don’t explicitly ban anti-LGBTQ discrimination

The cases cover a big gap in LGBTQ rights in the US: Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, or public accommodations (like restaurants, hotels, and other places that serve the public).

So someone can be fired from a job, evicted from a home, or kicked out of a business just because an employer, landlord, or business owner doesn’t approve of the person’s sexual orientation or gender identity.

Notice how Arizona sticks out like a sore thumb among our Western state neighbors. Even Utah — Utah for god’s sake! — extends statutory workplace protections for sexual orientation and gender identity.

Similarly, federal and most states’ laws don’t explicitly ban anti-LGBTQ discrimination in schools.

But federal and state laws do ban discrimination based on race, religion, nationality, and sex in the workplace, schools, and other settings. This is what the Civil Rights Act and other federal and state civil rights laws that followed were about.

What activists want to do is expand the existing civil rights protections to also protect LGBTQ people.

Advocates argue federal civil rights laws should already protect LGBTQ people
Civil rights advocates claim, however, that federal law should already shield LGBTQ people from discrimination, because, they say, bans on sex discrimination also ban discrimination based on sexual orientation and gender identity.

According to advocates, discrimination against people based on their sexual orientation or gender identity is fundamentally rooted in prohibited sex-based expectations. For example, if someone discriminates against a gay man, that’s largely based on the expectation that a man should only love or have sex with a woman — a belief built on the idea of what a person of a certain sex should be like.

Similarly, if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify as a man — again, a belief built on the idea of what a person of a certain sex assigned at birth should be like.

On the other side, opponents argue that LGBTQ nondiscrimination protections aren’t included in existing federal civil rights laws, because the authors of federal civil rights laws never believed or intended that bans on sex discrimination also ban discrimination based on sexual orientation and gender identity.

In fact, The Evolution of Title VII—Sexual Orientation, Gender Identity, and the Civil Rights Act of 1964 (.pdf):

“Sex” was added only two days before the bill’s passage in the House, without prior hearing or debate, by an amendment offered by Representative Howard Smith, who opposed the civil rights bill but believed his amendment “[would] do some good for the minority sex.” The amendment had been suggested to Smith by the National Women’s Party, and during the debate Smith and several other representatives spoke about their concern that, if the underlying bill were to pass, the “sex” provision would be needed to protect white women competing with black women in employment.

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The little legislative history that existed clearly indicated that Congress intended the provision to protect women, and courts had no difficulty interpreting the statute as protecting biological women from discrimination in employment due to the fact they were female.16 Even discrimination on the basis of pregnancy was initially held to be permissible under Title VII.

It was not until 2012, that “the EEOC—in a decision binding on all federal agencies—ruled for the first time that “discrimination based on gender identity, change of sex, and/or transgender status” is discrimination “because of sex” under Title VII, concluding in Macy v. Holder that the sex stereotyping theory of Price Waterhouse protects transgender individuals discriminated against on the basis of their status.”

LGBTQ advocates, citing legal precedent, say that what the original laws’ authors believe or intended is irrelevant. Joshua Block, an attorney with the ACLU LGBT and HIV Project, cited a 1998 Supreme Court case, Oncale v. Sundowner Offshore Services Inc., in which the Court unanimously agreed that bans on sex discrimination prohibit same-sex sexual harassment. Same-sex sexual harassment was not something the authors of federal civil rights laws considered, but it’s something, the Supreme Court said, that a plain reading of the law protects.

“Oncale says that’s irrelevant whether [Congress] contemplated it,” Block previously told me. “This is literal sex discrimination. Whether or not that’s what Congress was focused on doesn’t make it any less a type of discrimination covered by the statute.”

Even if courts conclude that statutory bans on sex discrimination do ban discrimination based on sexual orientation and gender identity, under federal law that would only create explicit protections in the workplace, housing, and schools — but not public accommodations. That’s because federal civil rights laws don’t ban sex discrimination in public accommodations. That leaves a hole in nondiscrimination laws to be settled even if courts ultimately come down in favor of LGBTQ rights.

Soon, the US Supreme Court will decide just how many protections LGBTQ people have under federal law.

Amy Howe explains at SCOTUSblog (quick summary):

In Altitude Express v. Zarda, the trial court threw out Zarda’s Title VII claim, reasoning that Title VII does not allow claims alleging discrimination based on sexual orientation. But the full U.S. Court of Appeals for the 2nd Circuit reversed that holding, concluding that Title VII does apply to discrimination based on sexual orientation because such discrimination “is a subset of sex discrimination.”

In Bostock v. Clayton County, Georgia, the federal district court ruled that Title VII does not apply to discrimination based on sexual orientation. The U.S. Court of Appeals for the 11th Circuit upheld that ruling.

In R.G. & G.R. Harris Funeral Homes v. EEOC, the federal Equal Employment Opportunity Commission filed a lawsuit on Stephens’ behalf, and the U.S. Court of Appeals for the 6th Circuit ruled for the EEOC and Stephens. The funeral home went to the Supreme Court last summer, asking it to review the lower court’s ruling. Today the justices granted the funeral home’s petition for review, agreeing to consider whether Title VII bars discrimination against transgender people based on either their status as transgender or sex stereotyping under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which indicates that a company can’t discriminate based on stereotypes of how a man or woman should appear or behave. The funeral home’s case will be argued separately from Bostock and Altitude Express.

A decision in these cases will not come until next year. In the meantime, Arizona should amend the Arizona Civil Rights Act to include statutory protections for sexual orientation and gender identity in employment, housing and public accommodations.