On October 8, 2019, the U.S. Supreme Court heard oral argument in three employment discrimination cases involving what protection, if any, Title VII of the Civil Rights Act of 1964 – which prohibits discrimination in employment on the basis of, among other things, sex – affords against sexual orientation and gender identity-based discrimination.  As we previously discussed here, there is currently no explicit protection against such discrimination under federal law, and federal appellate courts are split on the issue.  This term, the Supreme Court will determine whether the language in Title VII that prohibits employment discrimination “because of … sex” also extends to sexual orientation and transgender-based discrimination.  

The cases involve three employees, two gay men and a transgender woman, who were fired because of their LGBT status.  Pamela Karlan, attorney for the one of the men, argued before the Court that sexual orientation discrimination necessarily qualifies as sex discrimination under Title VII, reasoning that when an employer fires a male employee for dating men, but does not fire a female employee who also dates men, the employer is discriminating based on sex.  Further, because the adverse employment action is based on the male employee’s failure to conform to particular expectation of how men should behave, there is no discernable difference between this kind of discrimination and forms of sex discrimination that have already been recognized as unlawful by the Court.  Similarly, David Cole, the attorney representing the transgender employee, argued that transgender discrimination is prohibited under Title VII because “to accord to a generalization about how people who are assigned a particular sex based on visible anatomy at birth have to live their lives for the rest of their lives is sex discrimination.”  Attorneys representing the employers in these cases advocated for a narrow interpretation of Title VII, arguing that sex is distinct and independent from sexual orientation and gender identity, and that Congress did not intend Title VII to prohibit sexual orientation or gender identity discrimination.

It is hard to predict how the Court will rule on these issues given its current make-up.  These are the first LGBT rights cases to come before the Court since Justice Kennedy – who authored the one of the most pivotal recent Court opinions expanding LGBT rights – retired, and Justices Gorsuch and Kavanagh took the bench.  Unsurprisingly, during the oral arguments, the Court’s four liberal justices voiced support for a broader interpretation of Title VII that would protect against sexual orientation and transgender discrimination, while several of the Court’s conservative justices, particularly Justice Roberts and Justice Alito, expressed concern that Congress, not the courts, should be addressing this issue.   Justice Kavanagh remained silent through most of the two hours of oral argument, but Justice Gorsuch interjected frequently, at times seeming amenable to the argument that the word “sex” necessarily includes sexual orientation and transgender discrimination, but at other times voicing support for judicial restraint.

The Court’s ruling in these cases will dramatically affect the daily lives of the approximately 8 million LGBT employees currently living and working in the United States and the employers who employ them.  Stay tuned as we continue to update you on the outcomes of these cases, and their effects on employer anti-discrimination policies and practices.