|The current U.S. Supreme Court (image via SupremeCourt.gov)
The United States Supreme Court has announced it will weigh in on whether existing civil rights laws prohibits discrimination based on sexual orientation or gender identity.
Currently, federal law bans discrimination in the workplace on the basis of religion, race, color, sex or national origin. While there is no specific federal law that protects LGBTQ individuals at work, advocates for the LGBTQ community say Title VII of the Civil Rights Act of 1964prohibits being fired due to sexual orientation because that is a form of sex discrimination.
Lower courts have been split on the issue.
Of the cases that SCOTUS accepted for review Monday, two appeals courts ruled that the firings of a gay man and a transgender woman were illegal discrimination under Title VII, while a third case court ruled being fired for being gay does not fall under the purview of the civil rights law.
According to NBC News, here are the three cases:
• A New York skydiving instructor, Donald Zarda, said he was fired after telling a female client she didn’t need to worry about being tethered together by confiding he is gay. The 2nd Circuit Court of Appeals found, in that case, that sexual orientation discrimination is a subset of sex discrimination.
• A transgender woman in Michigan, Aimee Stephens, sued her former employer, a funeral home, after she was fired in the aftermath of sharing that she is transgender. The 6th Circuit Court of Appeals said transgender discrimination is banned due to Title VII.
• A Georgia man, Gerald Bostock, was dismissed by his employer after discovering his participation in a gay softball league (yes, that really happened), the 11th Circuit Court of Appeals ruled the 1964 civil rights law does not include sexual orientation.
Judge Diane Wood, of the 7th Circuit Court of Appeals, wrote in a 2017 ruling that “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”
But over in the 11th Circuit, Judge William Pryor pointed to lawmakers in his ruling saying that Congress “has not made sexual orientation a protected class.”
The high court will hear the cases during its next term that begins in October.
JoLynn Markison, a partner at the international law firm Dorsey & Whitney in its labor and employment practice and an advocate for the LGBTQ community, has been following this issue closely.
“This shift in the Supreme Court’s willingness to rule on the issue of whether Title VII’s prohibition on sex discrimination extends to gender identity and sexual orientation—which are quintessential expressions of “sex”—has been a long time coming,” Markison says.
Markison points to the newest member of the high court, Justice Brett Kavanaugh, as a fairly substantial ‘unknown’ in the upcoming deliberations in that he doesn’t have a clear judicial record on LGBTQ issues.
However, we do know his nomination was heavily supported by far-right, conservative groups like the Family Research Council, which has long advocated against LGBTQ equality.
That said, there’s another wild card player to watch here.
“Is there a swing vote on the Supreme Court? Or is this issue already as good as decided? The balance could lie with Chief Justice John Roberts, who notably did not join the conservative dissenters in Pavan v. Smith, in which the Supreme Court held that married same-sex couples are entitled to be listed on their children’s birth certificates the same as married heterosexual couples,” said Markison.
GLAAD, the world’s largest LGBTQ media advocacy organization, tweeted, “With more than 100 anti-LGBTQ attacks from the Trump Administration, this is exactly why we need to pass the #EqualityActnow and look toward explicitly protecting LGBTQ people with a constitutional amendment.”
Sarah Kate Ellis, CEO of GLAAD, followed that with her own tweet: “With Trump stacking the Supreme Court with anti-LGBTQ judges it’s clear that we need a constitutional amendment that protects LGBTQ people and all marginalized communities.”
In terms of state laws, it is currently legal to fire an LGBTQ person in more than 26 states across the nation. You can find information about your state at the Movement Advancement Project.