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Oct 10, 201901:10 PMOpen Mic

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Supreme Court to review prohibition of discrimination based on sexual orientation and gender identity

The U.S. Supreme Court has agreed to decide whether a federal law prohibiting employers from discriminating because of sex also protects LGBTQ individuals.

Background of the cases

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual “because of” that individual’s “race, color, religion, sex, or national origin.” In two consolidated cases — Bostock v. Clayton County and Zarda v. Altitude Express — the Court will decide whether Title VII’s ban on “sex” discrimination also prohibits employment discrimination based on an individual’s sexual orientation. And in a third case — R.G. & G.R. Harris Funeral Homes v. EEOC — the Court will decide whether the sex discrimination ban also prohibits discrimination based on an individual’s status as transgender. All three cases were to be argued on Oct. 8.

The employees in the cases — two gay men and a transgender woman, respectively — argue that an employer who discriminates because of sexual orientation or transgender status also discriminates “because of sex” within the meaning of Title VII. Sexual orientation, the argument goes, depends on two variables: a person’s own sex, and the sex to which that person is attracted. Thus, discriminating against a gay man because he is gay depends at least partially on his own sex, which is unlawful. The same rationale applies to transgender status, which also depends on two variables: sex assigned at birth and gender identity.

Analysis of the cases

The employees also rely on the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, a case holding that Title VII prohibits discrimination based on a person’s failure to adhere to sex stereotypes. In the current cases before the Supreme Court, the employees argue that being attracted to members of the same sex, or identifying as a gender other than the sex you were assigned at birth, are both quintessential examples of failing to adhere to sex stereotypes.

Husch Blackwell represented several Wisconsin-based advocacy organizations in an amicus curiae brief filed with the Court. The brief argues in support of the employees’ position on two main grounds. First, the statutory text, even when interpreted strictly, can logically be read only in the employees’ favor. Second, a ruling in the employees’ favor will preserve and enhance the Court’s institutional legitimacy.

What this case means to you

These cases certainly matter for educational institutions. Title VII applies to both private and public employers, including school districts, colleges, universities, and other governmental bodies. If the Court rules for the employees, school districts, as well as colleges and universities that receive federal funding, will need to ensure they do not make employment decisions based on sexual orientation or transgender status. This, of course, might require amended policies, additional training, and other defenses against liability exposure.

These cases also have far-reaching implications beyond employment. Because of similar statutory language, federal courts often look to Title VII cases when deciding cases brought under Title IX, the federal law that prohibits educational institutions that receive federal funding from discriminating “based on sex” in their educational programming. Recently, educational institutions have been engaged in significant Title IX litigation over access to facilities for transgender students. In Whitaker v. Kenosha Unified School District, for example, the Seventh Circuit Court of Appeals held that a school district had violated Title IX — and probably the Equal Protection Clause of the U.S. Constitution, as well — when it enforced a policy “requiring an individual to use a bathroom that does not conform with his or her gender identity.”

Joseph Diedrich is an associate at the Madison office of Husch Blackwell, specializing in challenges to government action, including attacks on the validity and enforcement of statutes, regulations, and ordinances, as well as review of decisions issued by federal agencies, state agencies, and local governments. His experience also extends to the areas of constitutional law; land use, zoning, and property rights; and class action defense.

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