Supreme Court to Consider Transgender Employment Rights Cases

April 23, 2019 Updated: April 23, 2019

WASHINGTON—Whether the Civil Rights Act of 1964 protects transgender and gay individuals from employment discrimination will be considered in three cases the Supreme Court has decided to hear.

Title VII of that landmark federal statute that came out of the Civil Rights Era prohibits employment discrimination based on race, color, religion, sex, and national origin.

The decision to hear the cases before Election Day 2020 is bound to inject hot-button culture war issues into the upcoming presidential election. Liberals may be outraged if the court fails to do enough to protect LGBT rights; conservatives may be outraged if the court goes too far to protect those individuals or is accused of inventing new rights. Decisions in the cases are likely to be rendered by June 2020.

At issue in the case is the meaning of the word “sex,” which has traditionally been taken to refer to a person’s biological sex at birth, as opposed to sexual orientation, and gender, a more difficult, politically and scientifically contentious concept whose definition is not universally agreed upon.

The Supreme Court ruled in Obergefell v. Hodges (2015) that the fundamental right to marry was guaranteed to same-sex couples under the Due Process Clause and the Equal Protection Clause of the 14th Amendment to the Constitution. Before that, in Lawrence v. Texas (2003), the court made same-sex sexual activity lawful throughout the United States.

But the extent to which gays, lesbians, and transgenders are protected in the realm of employment law is less clear-cut.

Two of the new cases the Supreme Court agreed on April 22 to hear, Bostock v. Clayton County, Georgia and Altitude Express v. Zarda, deal with homosexual employees. The two cases have been consolidated and will be heard together.

In the first case, Gerald Bostock, who worked as a child welfare services coordinator, claims the county fired him on a false pretext after discovering he was gay. The trial court sided with him. So did the 11th Circuit Court of Appeals.

In the second case, Donald Zarda, a skydiving instructor in New York, claims he was fired from his job for being gay. The trial court rejected Zarda’s sex discrimination claim, but the 2nd Circuit Court of Appeals reversed the decision, determining that Title VII forbids discrimination on the basis of sexual orientation because such discrimination constitutes “a subset of sex discrimination.”

The third case, Harris Funeral Homes v. Equal Employment Opportunities Commission, involves a transgender person, Aimee Australia Stephens, formerly known as William Anthony Beasley Stephens, who was fired by a Michigan funeral home. Stephens declared a desire to begin dressing as a woman and was fired by the Christian owner of the business, who claims he was merely upholding a sex-appropriate dress code. The U.S. Equal Employment Opportunity Commission sued on Stephens’s behalf and prevailed in the 6th Circuit Court of Appeals.

The Supreme Court agreed to hear the funeral home’s appeal. The court will consider whether the sex-discrimination provision of the Civil Rights Act forbids discrimination against transgender individuals, whether because of their transgender status or because they don’t adhere to culturally accepted notions of how men or women should appear or behave.

The funeral home argued in its petition to the high court that the “‘proper role of the judiciary’ is ‘to apply, not amend, the work of the People’s representatives.’”

The 6th Circuit “departed from that role by judicially amending the word ‘sex’ in Title VII of the Civil Rights Act of 1964 … to mean ‘gender identity.’ In so doing, the 6th Circuit usurped the role of Congress, which has repeatedly considered and rejected making such a change to Title VII,” the petition states.

“Redefining ‘sex’ to mean ‘gender identity’ is no trivial matter. Doing so shifts what it means to be male or female from a biological reality based in anatomy and physiology to a subjective perception evidenced by what people profess they feel.

“Far reaching consequences follow from that. For example, federal law in some parts of the country now mandates that employers, governments, and schools must administer dress codes and assign living facilities, locker rooms, and restrooms based on the ‘sex’ that a person professes.”

The funeral home’s owner “reasonably determined that the employee’s actions would violate the company’s sex-specific dress code and disrupt the healing process of grieving families. The language of Title VII does not mandate that result,” it states.