The Supreme Court has accepted three cases that ask whether federal anti-discrimination laws should apply to sexual orientation and gender identity in the workplace, putting the court on track to consider high-profile LGBTQ issues after its next term begins this fall.
Two of the cases — Bostock v. Clayton County, Georgia, and Altitude Express, Inc. v. Zarda — were consolidated because both include claims that employers discriminated on the basis of sexual orientation. A third — R.G. & G.R. Harris Funeral Homes v. EEOC — involves the question of whether existing discrimination laws apply to transgender workers.
The Supreme Court granted petitions for writs of certiorari for the three cases Monday morning, adding them to their workload for the term that will start in October — meaning any decisions and opinions will emerge in the runup to the national election in 2020.
But the court also set limits as it accepted the cases. As the court's order list states, the scope of the court's review of the Harris Funeral Homes case is limited to only question "whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping" under the 1989 decision in the Price Waterhouse v. Hopkins case.
The Supreme Court's order refers to Title VII, the part of the Civil Rights Act of 1964 that prohibits employers from discriminating on the basis of race, color, religion, sex and national origin. In recent years, lower federal courts have disagreed on whether the same protections should apply to people based on their sexual orientation and gender identity. That divide can be seen in the trio of cases now up for review.
"In two of the cases, lower courts sided with the plaintiffs," NPR's Leila Fadel reports for our Newscast unit, "one in Michigan where a transgender woman was fired from her job at a funeral home based on her gender identity; another, out of New York where a skydiving instructor was allegedly fired because he's gay. But in a third case in Georgia, a gay man who was fired from his job as a child welfare services coordinator lost."
In that third case, the Court of Appeals for the 11th Circuit turned away an appeal from Gerald Lynn Bostock last summer. Even before Bostock's appeal request was declined by the full panel, his attorneys already had asked the Supreme Court to weigh in.
As member station WABE reported, 11th Circuit judges voted 9-2 to decline Bostock's case — triggering a dissent from Judge Robin Rosenbaum, who wrote, "I continue to firmly believe that Title VII prohibits discrimination against gay and lesbian individuals because they fail to conform to their employers' views when it comes to whom they should love."
A similar rationale was put forth by the 2nd Circuit in the Altitude Express, Inc. v. Zarda case. As the American Bar Association said last spring, "Indeed, the court found that sexual orientation is doubly delineated by sex because it is a function of both a person's sex and the sex of those to whom he or she is attracted."
Describing the background of the Harris Funeral Homes case, Amy Howe writes for SCOTUSblog:
"In 2007, the funeral home hired Aimee Stephens, whose employment records identified Stephens as a man. Six years later, Stephens told Rost that Stephens identified as a woman and wanted to wear women's clothing to work. Rost fired Stephens, because Rost believed both that allowing Stephens to wear women's clothes would violate the funeral home's dress code and that he would be 'violating God's commands' by allowing Stephens to dress in women's clothing."
Depending on how they are decided, the cases could be seen as either continuing a move toward greater rights and protections for LGBTQ people in the U.S. or representing a shift in momentum, four years after the Supreme Court issued its landmark decision that legalized same-sex marriage.
In response to the news that the cases are heading to the newly conservative-leaning Supreme Court, the Human Rights Campaign called on Congress to explicitly add protections based on sexual orientation and gender identity by approving the Equality Act, which was reintroduced in the House last month.