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Supreme Court To Decide If Sexual Orientation And Gender Identity Are Protected Characteristics Under Federal Anti-Discrimination Laws

By Bobbie Mae James

As of April 22, 2019, the Supreme Court added three cases to the docket for its next term beginning in October 2019: a transgender funeral home director who won her case for unlawful termination based on gender discrimination, a gay sky-diving instructor  who successfully challenge his dismissal based on sexual-orientation claims, and a social worker who was unable to prove his unlawful termination was a result of his sexual orientation.  These cases could be considered landmark civil rights cases if the court rules that sexual orientation and gender identity is encompassed within sex-based discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).

Title VII forbids discrimination on the basis of sex.  The term “sex” however, is not defined in the act.  The question before the Supreme Court is whether the term “sex” is broad enough to encompass both sexual orientation and gender identity.  In the traditional sense, sex is defined as the biological differences (both genetic and genitalia) between males and females.  Gender is difficult to define but in general, it refers to the male and female roles/identities determined by society and an individual’s concept.  The term sex and gender are used interchangeably despite their differences, and sexual orientation has added to the complexity of sex; it refers to ones sexual attraction to the sexes and other genders.

Title VII was written decades ago, at a time when transgenderism and any sexual orientation other than heterosexual was frowned upon, prohibited and punished, making it unlikely that the law was written to include sexual orientation and gender identity. With our modern world evolving and becoming more welcoming towards changes in gender and the sexual spectrum, it was only a matter of time before the courts decided to weigh in on how these changes should be considered and protected in legal capacities.

The U.S. Court of Appeals for the 6th Circuit ruled “Discrimination ‘because of sex’ inherently includes discrimination against employees because of a change in their sex.”  Because sex and gender are used interchangeably and to some, can be considered the same, case law should consider discrimination based on a change in gender identity as sex discrimination.

Furthermore, case law from the U.S. Court of Appeals 2nd circuit ruled that employers cannot  discriminate against employees based on their sexual orientation.  Chief Judge Robert A. Katzmann wrote, “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”  The judges for the U.S. Court of Appeals for the 1st, 3rd, 4th, 5th, 6th, 7th, 8th, and 10th, circuit recognized that decision, however, the U.S. Court of Appeals for the 9th,11th, and 12th Circuit did not.

A decision in which the court finds sex-based discrimination to include sexual orientation discrimination and gender identity would be a great stride for the LGBT community of the United States gaining more civil rights that are federally enforced and protected. Every Court would have to abide by Title VII and enforce anti-discrimination laws to protect employees of all sexual orientations and genders.

We at The Harman Firm believe that all employees regardless of their gender identity or sexual orientation, deserve equal rights.  If you believe you’ve experienced discrimination based on your gender identity or sexual orientation, contact The Harman Firm, LLP.

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