Bloomberg Law
April 22, 2019, 1:41 PMUpdated: April 22, 2019, 4:10 PM

Supreme Court to Consider Whether LGBT Bias Is ‘Sex’ Bias (2)

Erin Mulvaney
Erin Mulvaney
Patrick Dorrian
Patrick Dorrian

The U.S. Supreme Court will settle whether federal civil rights protections should extend to LGBT workers, a divisive question that created clashes among government agencies, appeals courts, and advocacy groups in recent years. The outcome could have far-reaching effects on civil rights and workplace discrimination law.

The court announced on April 22 it would take up a trio of cases that will test the scope of sex discrimination protections under Title VII of the 1964 Civil Rights Act. Two cases surround whether gay, lesbian, or bisexual workers should be protected: Altitude Express, Inc. v. Zarda, U.S., No. 17-1623, review granted 1/18/19 and Bostock v. Clayton County, Georgia, U.S., No. 17-1618, review granted 1/18/19. R.G. & G.R. Harris Funeral Homes, Inc., v. EEOC, U.S., No. 18-107, review granted 1/18/19 considers protections for gender identity.

A ruling by the justices could also have implications outside of the workplace. Title VII case law often is cited as precedent in other civil rights contexts, such as Title IX rules prohibiting sex-based discrimination in K–12 schools and universities. A separate appeal seeking review of the Title IX issue remains pending at the high court.

On the question of sexual orientation protections, appeals courts are divided. The U.S. Court of Appeals for the Seventh Circuit was the first to find that sexual orientation should be considered a form of sex discrimination prohibited by Title VII. The Second Circuit, with the Zarda case, followed. In that case, the Equal Employment Opportunity Commission, which has long pushed for protections, and the Trump administration’s Justice Department argued on opposite sides. The Eleventh and Fifth circuits have declined to reverse their precedent on the issue.

“This is an important issue, it will impact thousands of workers in states where there is no coverage based on gender identity and sexual orientation,” said David Lopez, former general counsel at the EEOC, who pushed for a broader reading of Title VII at the agency. “The courts were hampered previously by cultural biases against the LGBT community.”

Lopez said some of the courts that ruled against sexual orientation protections were handed down when there were still criminal statutes on the books. With the expanded view of sex discrimination and more protections, such as marriage equality, the legal landscape has shifted, he said. “Married on Saturday, fired on Monday is an unreasonable reading of Title VII.”

The Sixth Circuit in March became the first federal appeals court to hold that discrimination against a worker based on gender identity or because the person is transitioning between genders is Title VII sex discrimination.

Gender identity, or protections for transgender workers, has been less divisive. Several federal appeals courts have said gender identity discrimination is a form of unlawful sex-stereotyping under Title VII. The DOJ also aligned against the EEOC, which brought the Harris Funeral case, on this question. The Justice Department represents the EEOC’s in matters before the Supreme Court. It’s unclear whether the EEOC would be able to argue before the court.

“Neither government agencies nor the courts have authority to rewrite federal law by replacing ‘sex’ with ‘gender identity’—a change with widespread consequences for everyone,” said John Bursch, attorney with the Alliance for Defending Freedom, which is defending Harris Funeral Homes. “Businesses have the right to rely on what the law is—not what government agencies want it to be—when they create and enforce employment policies. The funeral home wants to serve families mourning the loss of a loved one, but the EEOC has elevated its political goals above the interests of the grieving people that the funeral home serves.”

The EEOC declined to comment, while the Justice Department didn’t respond to a comment request.

EEOC Shift in Obama Era

Advocates, including the EEOC, have pushed for broader protections in recent years. The agency during the Obama administration began advocating to expand the scope of Title VII and has filed lawsuits on behalf of gay and transgender workers. The agency reports that between 2013, when the EEOC began tracking the data, to 2017, there were 5,822 charges of sexual orientation discrimination.

Title VII of the 1964 Civil Rights Act prohibits job discrimination because of sex. The provision for years had been read to not include discrimination because of sexual orientation or gender identity. The question in the three cases the justices agreed to hear is whether recent federal appeals court decisions holding that the more modern understanding of “sex” necessarily encompasses job bias against a worker who is gay, lesbian, bisexual, or transgender.

Supporters of the view that sex bias doesn’t include LGBT discrimination say Congress only had in mind whether a worker is male or female when it enacted the workplace discrimination provisions of the 1964 Civil Rights Act. In more than five decades since the law’s passage, federal lawmakers have repeatedly considered and rejected legislation that would explicitly expand Title VII’s coverage to include sexual orientation and/or gender identity, they say.

The Becket Fund for Religious Liberty, a conservative group, has said of this issue that the “potential conflicts between people of faith and those seeking to expand protections for LGBT individuals are better resolved by the legislative process.”

Matthew Clark, attorney for the Foundation for Moral Law, who wrote a friend-of-the-court brief in Harris Funeral, said, in a statement, “As this case illustrates, the lower federal courts have been rewriting Title VII in a way that forces Christians to approve of transgenderism despite their religious objections. We hope that the Supreme Court will use this opportunity to not only defend the doctrine of separation of powers, but also to protect religious liberty.”

Gregory Antollino, attorney for the estate of Don Zarda, said that while he wanted to preserve the Second Circuit’s decision in favor of protections, the Supreme Court should resolve the split. Zarda, who is now deceased, alleged in a lawsuit against his employer Altitude Express that he was fired for being gay.

“The split on this issue has inarguably deepened over the last year,” Antollino said. “We were certain that the Supreme Court would have to entertain our question eventually, which we believe is a simple matter of statutory construction. Nevertheless, what happened to Don Zarda was both wrong and—as two en banc Circuits have held—was against the law. All Americans should be able to work and not fear discrimination because of who they are. What matters most in this case is human dignity, and the promise of equal treatment for all.”

Altitude Express’ attorney Saul Zabell said the lower court attempted to extend the meaning of the statutory language beyond the meaning of Title VII.

“Un-elected officials—whether bureaucrats or judges—lack the constitutional power to make these choices for us,” he said.

Federal legislation, known as The Equality Act, has been proposed in Congress. The measure would amend existing civil rights law, including Title VII, to explicitly include sexual orientation and gender identity as protected characteristics.

(Updated with additional reporting.)

To contact the reporters on this story: Erin Mulvaney in Washington at; Patrick Dorrian in Washington at

To contact the editors responsible for this story: Jo-el J. Meyer at; Nicholas Datlowe at; Jay-Anne B. Casuga at