The United States Supreme Court announced this morning that in its next term, Justices will consider the hotly-debated issue of whether the protections of Title VII of the Civil Rights Act of 1964 (Title VII) extend to gay and transgender employees. In addition to protecting employees against discrimination on the basis of race, color, national origin and religion, Title VII prohibits discrimination “because of . . . sex.” The issue to be decided by the Supreme Court, which has divided lower federal courts and federal agencies, is whether the Title VII’s reference to “sex” includes sexual orientation and/or gender identity.
For years, federal courts took a very narrow view of the scope of Title VII’s protections against sex discrimination, uniformly holding it did not extend to employees discriminated against because of sexual orientation. The federal agency charged with enforcing Title VII, the Equal Employment Opportunity Commission (EEOC), followed the lead of the courts up until 2012, when it administratively ruled that discrimination based on gender identity constituted discrimination “because of sex.” More recently, the United States Courts of Appeal for the Second and Sixth Circuits have ruled that discrimination on the basis of sexual orientation or gender identity is Title VII sex discrimination.
The Supreme Court has granted petitions for certiorari to review the lower court rulings in three cases. In one of those cases, before the United States Court of Appeals for the Second Circuit, the volatility of the issue was highlighted by the fact that the United States Justice Department was arguing that gender identity was not protected by Title VII, directly contradicting the stance of the EEOC. The Supreme Court’s ultimate ruling as to these cases could have an impact beyond Title VII, since Title VII precedent is frequently relied upon in deciding cases brought under anti- discrimination laws, such as Title IX of the Education Amendments Act of 1972, which prohibits sex discrimination in any federally funded education program, including K-12 schools and universities.
Federal courts have repeatedly “punted” on the issue, taking the position that it is up to Congress to expressly and legislatively amend Title VII to include sexual orientation/gender identity within the definition of sex discrimination. However, over the years, repeated efforts to pass such legislation have been unsuccessful.