The U.S. Supreme Court’s ruling on June 16, 2020, in Bostock v. Clayton County, Georgia, 590 U.S. — , 2020 WL 3146686, 2020 U.S. LEXIS 3252, that Title VII of the 1964 Civil Rights Act bans employment discrimination against people because of their sexual orientation or gender identity, was the fifth landmark in a chain of important LGBT rights victories dating from 1996, continuing the Court’s crucial role in expanding the rights of LGBT people. The ruling culminated seventy years of struggle and activism seeking statutory protection for sexual minorities against employment discrimination, dating from the 1950s, when early LGBT rights organizations always listed such protection as one of their goals, even before the federal government began to address the issue of employment discrimination statutorily in 1964.
Trump-appointee Neil Gorsuch wrote the Court’s opinion, joined by Chief Justice John Roberts (a George Bush appointee), and the four Justices appointed by Democratic presidents: Ruth Bader Ginsburg and Stephen Breyer (Bill Clinton) and Sonia Sotomayor and Elena Kagan (Barack Obama).
Samuel Alito, appointed to the Court by George Bush, wrote an outraged dissenting opinion, joined by Clarence Thomas, who was appointed by George H.W. Bush. Trump-appointee Brett Kavanaugh penned a more temperate dissent, concluding with a surprising salute to the movement’s achievement of this milestone.
Justice Gorsuch’s emergence as the writer of this opinion caught many by surprise, since he is an acolyte of Justice Antonin Scalia, whom he replaced on the Court. Despite Scalia’s avowed commitment to many of the interpretive principles that Gorsuch also embraces, one could not imagine Scalia writing such an opinion, especially in light of the vitriolic dissenting opinions that he wrote to all four prior landmark opinions.
Because Chief Justice Roberts voted with the majority of the Court, he was in the position to assign the majority opinion to Gorsuch. Had this been a 5-4 ruling without Roberts, Justice Ginsburg, the senior justice in the majority, would have decided which justice would write for the Court. In the two marriage equality rulings, Justice Anthony Kennedy, whose approach to gay issues had been established in earlier cases, assigned the opinions to himself as senior justice in the majority. Ginsburg might well have assigned the opinion to Gorsuch in any event, to help secure his vote, especially as it was possible that if Ginsburg or one of the other Democratic appointees wrote an opinion embracing arguments Gorsuch could not accept, he might either drift away or write a concurrence in the judgment, resulting in a plurality opinion. It is even possible that Roberts’ vote came from his institutional concern that such a significant ruling have the weight of a 6-3 vote. Since there were already five votes in favor of the employee parties, his vote would not affect the outcome, but would give him some control over the opinion through his assignment to Gorsuch.
The 1996 landmark gay rights ruling was Romer v. Evans, a decision that established for the first time that a state’s discrimination against “homosexuals” violated the 14th Amendment’s Equal Protection Clause, striking down a homophobic amendment that Colorado voters had added to their state constitution, forbidding the state from providing anti-discrimination protection to gay people. Justice Kennedy’s opinion for a 6-3 Court found that the only explanation for the Colorado amendment’s adoption was animus against lesbians and gay men, never a constitutionally valid reason, so the Court did not expressly consider whether heightened scrutiny would apply to a sexual orientation discrimination claim.
The second landmark decision was Lawrence v. Texas (2003), declaring that a state law making gay sex a crime violated the guarantee of liberty in the 14th Amendment’s Due Process clause, and overruling a 1986 decision, Bowers v. Hardwick, which had rejected such a challenge to Georgia’s penal law.
The third landmark, United States v. Windsor, held in 2013 that the federal government must recognize same-sex marriages that states had authorized, striking down Section 3 of the Defense of Marriage Act, which had put into the United States Code a definition of marriage limited to different-sex couples. The Court held that this violated the Due Process and Equal Protection rights of same-sex couples under the 5th Amendment, again without explicitly engaging in discussion of whether a law discriminating based on sexual orientation is subject to heightened scrutiny.
The fourth landmark, Obergefell v. Hodges, held in 2015 that gay people enjoyed the same fundamental right to marry that had previously been guaranteed to straight people under the Due Process and Equal Protection Clauses of the 14th Amendment. Since the Court dealt with this as a fundamental rights case, both from the perspectives of due process and equal protection, it again avoided discussing whether the discriminatory aspect of the case implicated a suspect or quasi-suspect classification of sexual orientation.
In each of these cases, Justice Anthony M. Kennedy, Jr., wrote for the Court. The decisions were noteworthy as being the product of an otherwise conservative Court whose Republican appointees outnumbered the Democratic appointees. In Windsor and Obergefell, Kennedy was the only Republican appointee to side with the Democratic appointees to make up the 5-4 majority of the Court. Justice Sandra Day O’Connor, who was appointed by Ronald Reagan, cast a sixth vote for the prevailing parties in Romer and Lawrence. Her replacement, Justice Alito, dissented in Windsor and Obergefell, as well as Bostock.
The Bostock decision, incorporating two other cases, Altitude Express v. Zarda and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, was the first major LGBT rights decision by the Court since Kennedy retired and Trump made his second appointment to the Court, seemingly locking in a solid conservative majority that was expected not to be so receptive to LGBT rights claims. With the retirement of Kennedy, it was widely believed that it would be unlikely for a gay rights claim to carry a majority of the Court.
Consequently, when the Court announced more than a year ago that it would review these three cases, tremors ran through the LGBT rights legal community. Although progress had been made in persuading the Obama Administration – including the EEOC – and the lower federal courts that Title VII’s ban on “discrimination because of an individual’s sex” could be interpreted to forbid discrimination because of sexual orientation or gender identity, it was difficult for people to count a fifth vote to add to the presumed votes of the Democratic appointees on the Court. Chief Justice Roberts had emphatically dissented from the Windsor and Obergefell rulings, and LGBT rights groups had strongly opposed the nominations of Gorsuch and Kavanaugh, based on their extremely conservative records as court of appeals judges, which was seemingly borne out in Gorsuch’s case by his dissent in Pavan v. Smith (2017), taking the transparently incorrect position that the Court had not clearly held in Obergefell that same-sex marriages must be treated the same as different-sex marriages for all legal purposes, including birth certificates, something specifically mentioned in Kennedy’s Obergefell opinion. Nobody really thought it possible that Alito or Thomas would ever cast a vote in favor of an LGBT employee’s claim, but Kavanaugh and Gorsuch were a question marks, as was the unpredictable chief justice, despite his anti-LGBT voting record up to that time.
The only facts about these cases that were relevant to the Supreme Court’s decision were that the three employees whose discrimination claims ended up before the Court claimed that they were fired because of their sexual orientation (Gerald Bostock and Donald Zarda) or their gender identity (Aimee Stephens) in violation of Title VII’s ban on sex discrimination. The merits of the Title VII claims had not been decided in Bostock or Zarda, because the district courts in both cases found the claims not to be covered under Title VII and dismissed them. Aimee Stephens’ Title VII claim survived a motion to dismiss, however; the district court found that although Title VII, standing alone, was violated in her case (but solely using a gender stereotype theory rather than holding the gender identity claims are necessarily covered by Title VII), but that the employer, a deeply religious funeral home owner, had a valid defense under the Religious Freedom Restoration Act (RFRA), and so granted judgement to the employer. The 11th Circuit affirmed the dismissal in Bostock, as did a three-judge panel of the 2nd Circuit in Zarda, but the 2nd Circuit ultimately reversed the dismissal en banc. The Equal Employment Opportunity Commission (EEOC), which had sued on Stephens’ behalf, appealed to the 6th Circuit, which reversed the district court, finding the RFRA defense invalid, and ruling that Stephens’ gender identity discrimination claim had been proven. The 6th Circuit also rejected the district court’s conclusion that the EEOC, representing Stephens, was limited to a gender stereotyping claim, expanding on its prior precedents to hold that gender identity claims are necessarily covered by Title VII as a form of sex discrimination. Thus, the only final merits ruling in the cases before the Court was the EEOC’s (and Stephens’) victory in the 6th Circuit. Stephens had intervened at the 6th Circuit, represented by the ACLU, making her a respondent alongside the EEOC in the Supreme Court.
After the Trump Administration took office, the Solicitor General took over the case from the EEOC and, consistent with the Administration’s view that Title VII did not forbid gender identity discrimination, effectively “changed sides,” arguing that the employer should have prevailed. But, surprisingly inasmuch as the employer was being represented by Alliance Defending Freedom, a conservative religious freedom litigation group, the employer had not sought review of the 6th Circuit’s rejection of its RFRA defense, so the only question before the Court was the Title VII interpretation issue. Stephens was left to defend the 6th Circuit’s ruling, with the EEOC, represented by the Solicitor General, on the other side. The Solicitor General also participated as an amicus on behalf of the government in the Bostock and Zarda cases.
There was a big difference between the earlier landmark cases and this case. The four landmarks all involved interpretations of Constitutional Due Process and Equal Protection, and were decided, in sometimes quite emotional opinions by Justice Kennedy, based on concepts of human dignity and equality. The Bostock case, by contrast, was a matter solely of statutory interpretation, and solely of Title VII (despite Justice Alito’s decision to dwell on the RFRA question in his dissent). Perhaps surprisingly, two of the most ardent “textualists” on the Court, Trump’s appointees, parted company about how to apply that approach in determining the meaning of a 55-year-old statute.
Textualists contend that statutory interpretation is a matter of figuring out what the meaning of statutory language was at the time it was adopted. Extraneous information, such as congressional committee reports, hearing transcripts, speeches on the floor of Congress or statements inserted into the Congressional Record, are generally rejected by textualists, who argue, as Scalia memorably wrote in a 1998 opinion also involving Title VII and sex discrimination, that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
Gorsuch and Kavanaugh (as well as Alito) swear allegiance to this principle, but it took them in different directions in this case. Gorsuch, who had signaled this result as a possibility during the oral argument on October 8 last year, inclined towards a literalistic approach to the words of Title VII. While claiming that he was trying to determine “the ordinary public meaning” of the words at the time they were enacted, he rejected the argument that this meant that sexual orientation and gender identity could not possibly be covered, because he was persuaded by various arguments and examples that the statute as properly understood has always prohibited discrimination against people because of their “homosexuality” or “transgender status.” He wrote, “an employer who intentionally treats a person worse because of sex – such as firing the person for actions or attributes it would tolerate in an individual of another sex – discriminates against that person in violation of Title VII.”
Having accepted that point, he found persuasive several examples offered by counsel for Bostock and Zarda. Most prominent was the example of two employees, a man and a woman, with equally good qualifications, work records, and so forth, both of whom are attracted to men. The employer will hire the woman but reject the man. Because the employer will tolerate attraction to men by women but not by men, the employer’s refusal to hire the man is discrimination because of the man’s sex.
Stating his holding more generally, he wrote: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other facts besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.” The idea is that sex is supposed to be irrelevant to a personnel decision unless, as the statute provides, the employer can prove that sex is a bona fide occupational qualification for the job in question, an affirmative defense provision that Gorsuch neglects to mention. But Gorsuch agreed that making a personnel decision because the person is gay or transgender makes sex relevant to the decision, and thus is generally prohibited by Title VII. Or, as he put it quite strongly, “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The issue, wrote Gorsuch, is whether the plaintiff’s sex is a “but-for” cause of the challenged personnel action, but it doesn’t have to be the sole cause, because the statute does not expressly require that. “When an employer fires an employee because she is homosexual or transgender,” he explained, “two causal factors may be in play, both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.” Because all three cases being argued involved discharges, it is not surprising that Gorsuch mentions only discharges, but the clear important of the decision is that all the personnel actions coming within the scope of Title VII come within this ruling.
Responding to the argument that this could not possibly be the meaning of a statute passed in 1964, Gorsuch insisted that it has always been the meaning, it just was not recognized as such by the courts until more recently. He characterized this as the “elephant in the room” that everybody pretended was not really there. It was now time to recognize the presence of the elephant.
Aside from some passing references, Gorsuch’s interpretive discussion, and the examples he presented, focused mainly on the sexual orientation issue, but he was careful to mention gender identity or transgender status as well as sexual orientation whenever he stated his conclusions.
Alito unkindly stated in his dissent that Gorsuch’s conclusion that sexual orientation and gender identity are covered by Title VII is “preposterous.” Alito’s focus on the “original meaning” of statutory language, which he documents at length, shows as a matter of the historical record that in 1964 gay people were widely reviled as sick criminals, so it is impossible in his view to read the statutory language of 1964 as forbidding discrimination on this ground. Furthermore, he pointed out, as of 1964 the public’s awareness of transgender individuals was slight at best. Indeed, the very terms “transgender” and “gender identity” were not even used until much later. That a statute enacted in 1964 could be interpreted as prohibiting discrimination on this ground could not possibly accord with its “ordinary public meaning” at that time, he argued. But Gorsuch countered that Alito was talking about legislative intent, not contemporary meaning of the statutory language. As Scalia wrote so often in cases where he rejected evidence of legislative history, when the law is reduced to a written text, it is the text that is the law. Gorsuch even cited a few sources to suggest that some people at or near the time of enactment actually believed that gay or transgender people might have discrimination claims under Title VII.
“Ours is a society of written laws,” Gorsuch wrote. “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Reading Alito’s dissenting opinion may induce nausea in the reader, so graphic is his recounting of the horrendously homophobic views of the government and the public towards LGBT people in 1964, but he recites them to make his point that prohibition of discrimination on these grounds could not possibly be a correct textualist interpretation of this language from his perspective. He started his dissent pointedly by saying that the Court was engaged in “legislation,” not interpretation. And he concentrated on shooting holes in Gorsuch’s examples of the situations that led Gorsuch to conclude that discrimination because of homosexuality or transgender identity is, at least in part, sex discrimination.
Alito also wandered far from the central question in the cases, interjecting discussion of various issues likely to arise as a result of the decision, such as hardship for employers with religious objections to homosexuality or transgender identity (such as the employer in the Harris Funeral Homes case), and objections by co-workers to transgender employees using bathrooms and locker rooms. Gorsuch rejoined that these were questions for another day, not presently relevant to decide the appeals before the Court, noting particularly that Harris Funeral Homes had not asked the Court to review the 6th Circuit’s decision rejecting its RFRA defense. Alito was definitely putting down markers for the future cases that the Court may confront.
Kavanaugh makes some of the same points as Alito in his dissenting opinion, but it is notable that he did not join Alito’s dissent. This may be at least in part a generational thing. Gorsuch and Kavanaugh are considerably younger than Alito. By the time they were in college and law school, there were out gay people around and, on a personal level, they undoubtedly both agreed that as a matter of politics it would be appropriate for Congress to ban such discrimination. They just differed on whether the Court could reach the same result through interpretation of the 55-year old law. Kavanaugh noted that three-judge panels of ten circuit courts of appeals had rejected this interpretation. 30 judges out of 30, he wrote, more than once in his opinion, as if the unanimity of an incorrect interpretation somehow turned it into a correct interpretation. Obviously, these judges did not recognize the “elephant in the room”!
For Kavanaugh, this was really a “separation of powers” issue. The question for the Court, he wrote, was “Who decides?” The legislature has the power to make law, while the courts are limited to interpreting the statutes passed by the legislature. Here, agreeing with Alito, he asserted that the Court’s decision was violating the separation of powers. And he disagreed with Gorsuch’s approach to textualism in this case, find it too narrowly focused on individual works, thus losing the context necessary in his view to determine the contemporary “public meaning” of the overall provision in 1964.
However, Kavanaugh concluded his dissent revealing his political, as opposed to interpretive, preferences. “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans,” he wrote. “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit – battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s results. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.” Kavanaugh’s dissent largely ignored transgender people. His omission of them from this paragraph is inexplicable in light of the scope of the Court’s opinion and their activist role over the past several decades in seeking protection against discrimination.
Interestingly, Gorsuch premised the case entirely on a strict textualist reading of the statute, avoiding reliance on the alternative theories that the EEOC and some lower courts embraced. One such theory was gender stereotyping, grounded in the Court’s 1989 decision in Price Waterhouse v. Hopkins, in which the Court held that an employer who takes an adverse action because an employee fails to comport with stereotypes about women or men has exhibited an impermissible motivation for its actions under Title VII. Another theory, first developed in race discrimination cases, was that discharging a worker because he or she was engaged in an interracial relationship was a form of discrimination because of race. Neither this “associational theory” nor the sex stereotyping theory entered into Gorsuch’s rationale for binding Title VII applicable in Bostock.
The Court’s opinion has the immediate effect of extending protection to LGBT workers in the majority of states that do not ban sexual orientation or gender identity discrimination in their state civil rights laws, but there remain significant gaps in protection. Title VII applies to employers with at least 15 employees, state and local government employees, and federal employees. It does not apply to the uniformed military (so this decision does not directly affect Trump’s transgender service ban), or to religious organizations in their policies on “ministerial employees.” Thus, a substantial portion of the nation’s workforce does not gain any protection from discrimination by this interpretation of Title VII, because a substantial portion of the workforce is employed by smaller businesses or is classified as non-employee contractors. Furthermore, as Gorsuch noted briefly but Alito expounded at length, the Religious Freedom Restoration Act (RFRA) might be interpreted to “supplant” the Title VII protections in particular cases.
The potential application of RFRA is worth noting. Reading Gorsuch’s opinion, one might immediately identify this as a potential “poison pill.” A few years ago, in its Hobby Lobby decision, the Supreme Court suddenly discovered that business corporations could argue that a particular policy mandated by another federal law unduly burdened the employer’s free exercise of religion, and they might thereby escape compliance with the law if the government fell short in showing that its policy was the least restrictive alternative to achieve a compelling government interest. (In Harris Funeral Homes, the 6th Circuit interpreted RFRA in this context and found that the government’s compelling interest in preventing sex discrimination could be achieved only by an outright prohibition, without an exception for business owners who had religious objections.) Although Justice Alito’s opinion for the Court in Hobby Lobby rejected the idea that an employer could make such an argument in defense of a race discrimination claim, Justice Ginsburg pointed out in dissent that Alito’s opinion failed to address the issue of sexual orientation, pointing to cases where businesses claimed a religiously-based right to discriminate against gay people. This is an issue that is hardly settled, and Gorsuch’s reference to the possibility of RFRA as a “super statute” to “supplant” Title VII protections in “appropriate cases” is ominous. Where a case does not involve “ministerial employees,” the full weight of Title VII normally applies to the issue of employment discrimination by religious institutions whether because of race or color, sex or national origin. Shortly, the Court will be ruling on some new cases about the scope of this “ministerial” exception, and may issue a decision that bears on cases in which, for example, gay employees of Catholic educational institutions have been terminated for entering same-sex marriages.
In addition, of course, Title VII only applies to employment decisions. It doesn’t affect decisions by companies about hiring people as non-employee independent contractors, and it doesn’t apply to the myriad other ways that LGBT people encounter discrimination through denial of services, housing, and other privileges of living in our society. This decision does not eliminate the need for enactment of the Equality Act, a bill that would amend numerous provisions of federal law to extend anti-discrimination protection to LGBT people, while amending Title VII to make explicit the coverage of sexual orientation and gender identity. Perhaps most importantly in terms of gap-filling, the Equality Act would add “sex” to the prohibited grounds of discrimination in federal public accommodations law while at the same time expanding the concept of a public accommodation, and would also require federal contractors and funding recipients not to discriminate on these grounds.
Alito’s dissent suggested that the reasoning of the Court’s opinion could protect LGBT people from discrimination under all those other federal statutes that address discrimination because of sex. That would fill a significant part of the gap left by this decision, but not all of it, because, as explained in the previous paragraph, the Civil Rights Act provisions on public accommodations do not forbid sex discrimination and small employers are not covered. Alito appended to his dissent a list of more than 100 federal statutory provisions that he claimed would be affected by this decision, among them Title IX of the Education Amendments Act, under which courts have addressed disputes involving transgender students. This provides a useful “to do” list for the LGBT rights litigation groups, finding cases to firmly establish that the Court’s conclusion in Bostock applies to all those other protections. Closing the gaps through passage of the Equality Act and through passage of state and local laws to cover employers not subject to Title VII must be an ongoing project. There also may be an opening to persuade state courts that they should adopt similar interpretations of the prohibition of sex discrimination under their state laws.
An early test may come as courts confront challenges to a new regulation announced by the Department of Health and Human Services, just days before this decision was announced, reversing an Obama Administration rule under the Affordable Care Act’s antidiscrimination provision and “withdrawing” protection against discrimination under that Act for transgender people. Lawsuits were quickly threatened challenging this regulation. The ACA incorporates by reference the sex discrimination ban in Title IX, so federal courts should read this consistentlyly with Bostock and hold that the regulatory action violates the statute.
Another important point to bear in mind is that coverage of a form of discrimination by the statute does not inevitably lead to a ruling on the merits for the employee. Title VII litigation can be very difficult, and many employees lose their cases early in the process due to procedural roadblocks or, in the case of sex discrimination claims, to the courts’ view that sex may be a “bona fide occupational qualification” in a particular case. When plaintiffs attempt to represent themselves, they may be felled by statutes of limitations, shortcomings in their factual pleadings, or limited resources to investigate the facts and articulate a convincing claim as required by federal civil pleading standards. Furthermore, many employers require employees to execute arbitration agreements when they are hired, so plaintiffs seeking to get their proverbial “day in court” may be disappointed to discover that they are relegated to arguing in private before an arbitrator, in many cases carefully selected by the employer based on his or her “track record” in ruling on employee claims. The road to vindication is not always a smooth one.
The Court’s decision was immediately controversial with certain conservative and religious groups, some of which quickly made spurious claims about how this ruling could interfere with their free exercise and free speech rights, but public opinion polls have consistently shown overwhelming support for outlawing employment discrimination against LGBT people for many years now, so there was no startled outcry by the public at large in the days following the ruling. Those who are cynical about the idea of judging by “neutral principals of law” have often exclaimed that the Supreme Court follows the election returns, so they may characterize this opinion as more political than legal, but the “bipartisan” nature of the line-up of justices would rebut that contention. And, notably, many of the court of appeals decisions that have ruled this way in recent years have also been bipartisan. The opinion, in the matter of fact way that Gorsuch writes about “homosexual” and “transgender” people in the opinion, comes across as impassive by comparison to the florid prose of Kennedy, but it gets the job done.
Kavanaugh’s closing paragraph says that “gays and lesbians” should take pride in this victory, which was hard-earned through decades of political, legal and personal struggle. A brief pause to take pride in this ruling is appropriate, but pushing ahead to fill the remaining gaps in full legal equality is essential. A battle has been won, but not yet the war.
Unfortunately, neither Donald Zarda nor Aimee Stephens lived to learn of their victories. Zarda, who had been fired from a job as a sky-diving instructor, died in a sky-diving accident while his case was pending. Stephens was gravely ill by the time of the oral argument (which she attended, although wheelchair bound), and passed away just weeks before the Court’s decision. Gerald Bostock, however, gave delighted interviews to the press, and was looking forward to the remand back to the district court so that he would get his opportunity to prove that he was the victim of unlawful discrimination.
The Court was flooded with amicus briefs in these cases, too numerous to mention individually here. On October 8, 2019, the Court first heard arguments on the sexual orientation issue, with Pamela S. Karlen representing Bostock and the Estate of Zarda, Jeffrey M. Harris representing the Clayton County and Altitude Express, and Solicitor General Noel J. Francisco presenting the Trump Administration’s position in support of the employers. Next the Court heard arguments on the gender identity issue, with David Cole representing Stephens, John J. Bursch representing Harris Funeral Homes, and again Solicitor General Francisco representing the Trump Administration’s position that gender identity discrimination is not covered by Title VII. The EEOC, the respondent in the case, was not separately represented and did not support the government’s position, evidenced by the government’s briefs, which unusually did not list attorneys from the agency.
Posts Tagged ‘Equal Employment Opportunity Commission’
Supreme Court Holds that Federal Law Bans Anti-LGBT Employment Discrimination in Historic 6-3 Ruling
The U.S. Supreme Court’s ruling on June 16, 2020, in Bostock v. Clayton County, Georgia, 590 U.S. — , 2020 WL 3146686, 2020 U.S. LEXIS 3252, that Title VII of the 1964 Civil Rights Act bans employment discrimination against people because of their sexual orientation or gender identity, was the fifth landmark in a chain of important LGBT rights victories dating from 1996, continuing the Court’s crucial role in expanding the rights of LGBT people. The ruling culminated seventy years of struggle and activism seeking statutory protection for sexual minorities against employment discrimination, dating from the 1950s, when early LGBT rights organizations always listed such protection as one of their goals, even before the federal government began to address the issue of employment discrimination statutorily in 1964.
On October 8, the second day of hearings in the Supreme Court’s October 2019 Term, the Court will hear arguments in Bostock v. Clayton County, Georgia, Case No. 17-1618, and Altitude Express, Inc. v. Zarda, Case No. 17-1623, appeals from the 11th and 2nd Circuits on the question whether sexual orientation discrimination claims are actionable as sex discrimination under Title VII of the Civil Rights Act of 1964, and in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission and Aimee Stephens, Case No. 18-107, an appeal from the 6th Circuit on the question whether gender identity discrimination claims are actionable as sex discrimination under Title VII. The Court consolidated the two sexual orientation discrimination cases, in which the plaintiff-employee is appealing in Bostock and the defendant-employer is appealing in Altitude Express, for a single argument of one hour. The argument in Harris Funeral Homes, in which the employer is appealing, will be argued next. Transcripts of the arguments will be posted on the Supreme Court’s website shortly after each argument has concluded (usually within an hour or two), and links to audio recordings of the arguments will be made available on the Court’s website later in the week.
Harris Funeral Homes presents an unusual situation; the victorious party in the 6th Circuit Court of Appeals, the Equal Employment Opportunity Commission (EEOC), is represented in the Supreme Court by the Solicitor General, who, reflecting the change of administration since the original complaint in this case was filed by the EEOC, is now joining with the employer to ask the Court to reverse the 6th Circuit. The only party defending the 6th Circuit’s decision is the charging party in the EEOC proceeding, transgender funeral director Aimee Stephens, who intervened as a co-appellant in the 6th Circuit, is named as a Respondent in Harris Funeral Homes’ cert. petition, and is represented by the American Civil Liberties Union. Harris Funeral Homes is represented by Alliance Defending Freedom (ADF), the conservative religious litigation group that is a frequent litigant opposing LGBT rights in the courts.
For purposes of briefing, the Court decided to treat all the employee-plaintiffs in the three cases as if they were Petitioners (although only Bostock is a Petitioner in the Supreme Court), and the three employer-defendants as if they were Respondents (even though two of them are actually Petitioners). Thus, the first round of briefing, which was concluded early in July, consisted of the main briefs for Gerald Bostock, the Estate of Donald Zarda, and Aimee Stephens, and the amicus briefs (more than 40) filed in support of their claims that Title VII does extend to sexual orientation and gender identity discrimination claims. The second round of briefing, which concluded during August, consisted of the briefs for the three employers – Clayton County, Georgia; Altitude Express; and Harris Funeral Homes; and the EEOC, which is technically a respondent even though the government, as such, is now siding with the Petitioner.
Interestingly, despite earnest efforts by the Solicitor General’s Office, the EEOC’s General Counsel, who would ordinarily be a signatory on the brief purporting to represent their agency, did not join in the submission of the government’s brief, since as of the date of filing the EEOC had not disavowed its position that gender identity discrimination claims are covered by Title VII. Indeed, the amicus brief filed by the Solicitor General in the sexual orientation cases on behalf of the employer also lacked the EEOC’s signature, since the agency that enforces Title VII (and whose interpretation of the statute is entitled to judicial deference, under existing precedents), has not disavowed its position (argued as an agency amicus in the 2nd Circuit) that Title VII covers sexual orientation claims. Quite a tangle for the Supreme Court to confront. During oral argument of Zarda v. Altitude Express in the 2nd Circuit, the en banc bench reflected some puzzlement and bemusement about being confronted with a lawyer from the S.G.’s office and a lawyer from the EEOC arguing against each other.
Simultaneously with the filing of the government’s brief, the Solicitor General filed a request that argument time be divided evenly (15 minutes each) between the Solicitor General’s office and ADF, counsel for Harris Funeral Homes.
Law Notes gave an overview of the first round of filings in our August 2019 issue. Herewith is a brief summary of the second round of filings.
Altitude Express’s brief was signed by Saul D. Zabell, Counsel of Record who has represented the company throughout this litigation, and Ryan T. Biesenbach of Zabell & Collotta, P.C., a Bohemia, N.Y., law firm. It predictably argues that the meaning of Title VII must be its “original public meaning” – the meaning that members of the public would attribute to the statutory language when it was enacted by Congress in 1964. The brief claims that the Supreme Court has never interpreted Title VII in a manner that “conflicts” with “the original public meaning of ‘sex’.” It also describes as “wrong” the various legal theories offered by Bostock for construing “sex” to include “gender identity.” It argues that subsequent legislative developments – the repeated introduction of bills to amend federal anti-discrimination law to add “sexual orientation” that have never achieved enactment, as well as the enactment of some other statutes that use ‘sexual orientation’ such as the Hate Crimes Law – show Congress’s understanding that the term must be used to address such discrimination, noting also that after the EEOC and several lower federal courts had rejected sexual orientation discrimination claims in the early period of Title VII’s history, Congress passed a package of amendments to Title VII in 1991 but did not overrule any of those rulings legislatively. The brief also rejects certain other arguments that some lower court judges had accepted as reasons for extending Title VII to cover sexual orientation claims. None of these arguments was new or unanticipated, and they were all rejected in one way or another not only in the 2nd Circuit (en banc) but also in the 7th Circuit (en banc) in 2017 in Hively v. Ivy Tech Community College, a case where the employer decided not to seek Supreme Court review.
Clayton County’s brief (Bostock), signed by Counsel of Record Jack R. Hancock and other attorneys from the Forest Park, Georgia, law firm of Freeman Mathis & Gary LLP, carries the same argument headings as Altitude Express’s brief. Indeed, they appear to be a joint product, making identical arguments.
The main brief that drew most of the press commentary when it was filed, of course, was the Solicitor General’s brief, on which S.G. Noel J. Francisco is Counsel of Record. The other signatories are attorneys in the Solicitor General’s office and main Justice Department. As noted above, and deemed newsworthy, no attorneys from the EEOC signed this brief which is presented as the brief of the Federal Respondent (which, technically, is the EEOC). The brief urges the Court to adopt a narrow interpretation of key Title VII Supreme Court precedents on which the EEOC had relied in the 6th Circuit, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services, contending that the 6th Circuit had extended them beyond their holdings to reach the conclusion that allowing gender identity discrimination claims is consistent with Supreme Court precedent. Most of the arguments in the brief are variants of one or more of the arguments in the Altitude Express and Clayton County briefs, effectively countering the EEOC’s justifications for applying Title VII to gender identity claims in Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995 (2012). Even though the EEOC has not overruled Macy, it is anticipated that it may do so in due course as the new majority resulting from Trump’s appointments to the Commission either rules on a federal sector gender identity discrimination case, proposes a new regulatory interpretation, or takes a position in litigation in the lower federal courts embracing a change of position. The Commission could just instruct its regional offices to dismiss gender identity claims on jurisdictional grounds, similar to the action of the U.S. Department of Education which now refuses to process gender identity discrimination claims under Title IX of the Education Amendments of 1972.
The brief on behalf of Harris Funeral Homes, submitted by Alliance Defending Freedom, attracted comparatively little attention, with the Solicitor General being the “elephant in the room.” Mainstream press coverage clearly sees Harris as part of the Trump Administration’s overall opposition to transgender rights as part of its systemic attempt to reverse the civil rights positions taken by the Obama Administration. Clearly, the president feels that he was elected to overturn everything that the Obama Administration did, if possible. This was certainly reflected in his transgender military service ban and former Attorney General Jeff Sessions’ October 2017 memorandum disavowing the Obama Administration’s positions on both sexual orientation and gender identity discrimination.
Beginning on August 16 and extending through August 23, the Supreme Court clerk added to the docket forty amicus briefs supporting Harris Funeral Homes’ (and the Solicitor General’s) position that Title VII does not extend to gender identity discrimination claims. Some were from the “usual suspects” familiar to anybody who had scanned the amicus lists in Obergefell and Windsor, the cases concerning marriage equality. They include states whose anti-discrimination laws do not cover gender identity, Republican members of Congress, companies that don’t want to be forced to employ transgender people, individual legal scholars, polemicists, think tanks and policy institutes, and, of course, religious entities that argue that requiring employers to accommodate transgender people excessively burdens their religious freedom. (In Harris, the owner of the funeral homes stated his religious beliefs as a justification for his refusal to continue employing the plaintiff after she wrote to him about her gender transition. As a result of this, the district court ruled in favor of Harris Funeral Homes in reliance on the Religious Freedom Restoration Act, employing an interpretation subsequently rejected by the 6th Circuit. Surprisingly, in light of its religious freedom orientation, ADF did not include in its cert petition a question about the application of the RFRA to this case, so technically the religious arguments made by many of the amici are not pertinent to the questions on which cert was granted.
Particular press attention was drawn to briefs of some feminist groups who are particularly perturbed about any legal recognition of transgender women, making arguments that fall far outside the mainstream of the professional medical and mental health communities about the nature of human sexuality, contending that transgender women are men in drag who should not be given admission to women-only spaces and should not be accorded the treatment under anti-discrimination law that has been accorded to women. Vox.com devoted a lengthy article to explaining the opposition of some feminist groups to transgender rights. See Katelyn Burns, The Rise of Anti-Trans ‘Radical’ Feminists, Explained” (posted September 5, 2019).
Also during August, 24 amicus briefs (including one from the Solicitor General, as the federal government is not a party in the sexual orientation cases) were filed in support of the employers in the sexual orientation discrimination cases, Bostock and Altitude Express. Of course, the EEOC’s legal staff is not represented among the signers of the Solicitor General’s amicus brief, again a newsworthy absence denoting that at least as of the time when briefs were due, the agency had not abandoned its position in Baldwin v. Foxx, EEOC No. 0120133080, 2015 WL 4397641 (2015), that Title VII covers sexual orientation discrimination claims. Many of these amicus briefs were noted as addressing all three pending Title VII cases and thus were also filed and counted among the Harris Funeral Home amicus briefs. When it announced the filing schedule, the Court also directed that amicus briefs for the Altitude Express case were to be filed on the Bostock docket. The same mix of amici that one finds on the Harris Funeral Homes docket generally show up on the Bostock list, minus those groups who have a specific focus on opposing transgender rights. The arguments in the amicus briefs are similar as well, although, of course, the argument that gender is identified at birth is permanent and not changeable is absent here, while it predominates in many of the amicus briefs filed in Harris Funeral Homes.
Several of these amicus briefs emanate from groups that may have been formed for the specific purpose of filing amicus briefs in these cases. All of the docketed amicus briefs can be examined on the Supreme Court’s website, where they are available to be downloaded in pdf format.
The deadline for the third round of briefing set by the Court is September 16, when Reply Briefs can be filed, responding to the briefs that were filed in August. Reply briefs, if any, will be reported in the October issue of Law Notes.
Supreme Court to Decide Whether Discrimination Because of Sexual Orientation or Gender Identity Violates Title VII’s Ban on Discrimination Because of Sex
The U.S. Supreme Court announced on April 22 that it will consider appeals next term in three cases presenting the question whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination because of an individual’s sex, covers claims of discrimination because of sexual orientation or gender identity. Because federal courts tend to follow Title VII precedents when interpreting other federal sex discrimination statutes, such as the Fair Housing Act and Title IX of the Education Amendments of 1972, a ruling in these cases could have wider significance than just employment discrimination claims.
The first Petition for certiorari was filed on behalf of Gerald Lynn Bostock, a gay man who claimed he was fired by the Clayton County, Georgia, Juvenile Court System, for which he worked as Child Welfare Services Coordinator, because of his sexual orientation. Bostock v. Clayton County Board of Commissioners, No. 17-1618 (filed May 25, 2018). The trial court dismissed his claim, and the Atlanta-based 11th Circuit Court of Appeals affirmed the dismissal, 723 Fed. Appx. 964 (11th Cir., May 10, 2018), petition for en banc review denied, 894 F.3d 1335 (11th Cir., July 18, 2018), reiterating an old circuit precedent from 1979 that Title VII does not forbid discrimination against homosexuals.
The second Petition was filed by Altitude Express, a now-defunct sky-diving company that discharged Donald Zarda, a gay man, who claimed the discharge was at least in part due to his sexual orientation. Altitude Express v. Zarda, No. 17-1623 (filed May 29, 2018). The trial court, applying 2nd Circuit precedents, rejected his Title VII claim, and a jury ruled against him on his New York State Human Rights Law claim. He appealed to the New York-based 2nd Circuit Court of Appeals, which ultimately ruled en banc that the trial judge should not have dismissed the Title VII claim, because that law applies to sexual orientation discrimination. Zarda v. Altitude Express, 883 F.3d 100 (2nd Cir., Feb. 26, 2018). This overruled numerous earlier 2nd Circuit decisions.
The third petition was filed by R.G. & G.R. Harris Funeral Homes, three establishments located in Detroit and its suburbs, which discharged a funeral director, William Anthony Beasley Stephens, when Stephens informed the proprietor, Thomas Rost, about her planned transition. R.G. & G.R. Funeral Homes v EEOC, No. 18-107 (filed July 20, 2018). Rost stated religious objections to gender transition, claiming protection from liability under the Religious Freedom Restoration Act (RFRA) when the Equal Employment Opportunity Commission sued the funeral home under Title VII. Stephens, who changed her name to Aimee as part of her transition, intervened as a co-plaintiff in the case. The trial judge found that Title VII had been violated, but that RFRA protected Harris Funeral Homes from liability. The Cincinnati-based 6th Circuit Court of Appeals affirmed the trial court’s holding that the funeral home violated Title VII, but reversed the RFRA ruling, finding that complying with Title VII would not substantially burden the funeral home’s free exercise of religion. EEOC v. R.G. & G.R. Harris Funeral Homes, 884 F.3d 560 (6th Cir., March 7, 2018). The 6th Circuit’s ruling reaffirmed its 2004 precedent in Smith v. City of Salem, 378 F.3d 566, using a gender stereotyping theory, but also pushed forward to hold directly that gender identity discrimination is a form of sex discrimination under Title VII.
In all three cases, the Court has agreed to consider whether Title VII’s ban on discrimination “because of sex” is limited to discrimination against a person because the person is a man or a woman, or whether, as the EEOC has ruled in several federal employment disputes, it extends to sexual orientation and gender identity discrimination claims.
The question whether the Court would consider these cases has been lingering on its docket almost a year, as the petitions in the Bostock and Zarda cases were filed within days of each other last May, and the funeral home’s petition was filed in July. The Court originally listed the Bostock and Zarda petitions for consideration during its pre-Term “long conference” at the end of September, but then took them off the conference list at the urging of Alliance Defending Freedom, representing the funeral home, which suggested that the Court should wait until briefing on the funeral home was completed and then take up all three cases together.
The Court returned the petitions to its conference list in December, and the cases were listed continuously since the beginning of this year, sparking speculation about why the Court was delaying, including the possibility that it wanted to put off consideration of this package of controversial cases until its next term, beginning in October 2019. That makes it likely that the cases will not be argued until next winter, with decisions emerging during the heat of the presidential election campaign next spring, as late as the end of June.
Title VII was adopted as part of the Civil Rights Act of 1964 and went into effect in July 1965. “Sex” was added as a forbidden ground of discrimination in employment in a floor amendment shortly before House passage of the bill. The EEOC, originally charged with receiving and investigating employment discrimination charges and attempting to conciliate between the parties, quickly determined that it had no jurisdiction over complaints charging sexual orientation or gender identity discrimination, and federal courts uniformly agreed with the EEOC.
The courts’ attitude began to change after the Supreme Court ruled in 1989 that evidence of sex stereotyping by employers could support a sex discrimination charge under Title VII in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (plurality opinion by Justice William J. Brennan), and in 1998 in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (opinion by Justice Antonin Scalia), the Court suggested that Title VII could apply to a “same-sex harassment” case. Justice Scalia stated that Title VII’s application was not limited to the concerns of the legislators who voted for it, but would extend to “comparable evils.”
These two rulings were part of a series of cases in which the Supreme Court took an increasingly flexible approach to interpreting discrimination “because of sex,” which in turn led lower federal courts earlier in this century to reconsider their earlier rulings in LGBT discrimination cases. Federal appeals court rulings finding protection for transgender plaintiffs relied on Price Waterhouse’s sex stereotyping analysis, eventually leading the EEOC to rule in 2012 that a transgender applicant for a federal job, Mia Macy, could bring a Title VII claim against the federal employer. Macy v. Holder, 2012 WL 1435995. In 2015, the EEOC extended that analysis to a claim brought by a gay air traffic controller, David Baldwin, against the U.S. Transportation Department, Baldwin v. Foxx, 2015 WL 4397641, and the EEOC has followed up these rulings by filing discrimination claims in federal court on behalf of LGBT plaintiffs and appearing as amicus curiae in such cases as Zarda v. Altitude Express.
In the Harris Funeral Homes case, the 6th Circuit became the first federal appeals court to go beyond the sex stereotype theory for gender identity discrimination claims, agreeing with the EEOC that discrimination because of gender identity is always discrimination because of sex, as it involves the employer taking account of the sex of the individual in making a personnel decision. The EEOC’s argument along the same lines for sexual orientation discrimination was adopted by the Chicago-based 7th Circuit Court of Appeals in 2017 in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. en banc), a case that the losing employer did not appeal to the Supreme Court. In 2018, the 2nd Circuit endorsed the EEOC’s view in the Zarda case.
During the oral argument of Zarda in the 2nd Circuit, the judges expressed some amusement and confusion when an attorney for the EEOC argued in support of Zarda’s claim, and an attorney for the Justice Department argued in opposition. When the case was argued in September 2017, the EEOC still had a majority of commissioners appointed by President Obama who continued to support the Baldwin decision, but Attorney General Jeff Sessions took the position on behalf of the Justice Department that federal sex discrimination laws do not apply to sexual orientation or gender identity discrimination claims.
Due to the Trump Administration’s failure to fill vacancies on the EEOC, the Commission currently lacks a quorum and cannot decide new cases. Thus, the Solicitor General’s response for the government to Harris Funeral Home’s petition for review did not really present the position of the Commission, although the Solicitor General urged the Court to take up the sexual orientation cases and defer deciding the gender identity case. Perhaps this was a strategic recognition that unless the Court was going to back away from or narrow the Price Waterhouse ruling on sex stereotyping, it was more likely to uphold the 6th Circuit’s gender identity ruling than the 2nd Circuit’s sexual orientation ruling in Zarda, since the role of sex stereotyping in a gender identity case seems more intuitively obvious to federal judges, at least as reflected in many district and appeals court decisions in recent years.
The Court sometimes tips its hand a bit when granting certiorari by reframing the questions posed by the Petitioner. It did not do this regarding sexual orientation, merely stating that it would consolidate the two cases and allot one hour for oral argument. Further instructions will undoubtedly come from the Court about how many attorneys will be allotted argument time, and whether the Solicitor General or the EEOC will argue on the sexual orientation issue as amicus curiae.
The Court was more informative as to Harris Funeral Homes, slightly rephrasing the question presented in the Petition. The Court said that the Petition “is granted limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.” One wonders why the Supreme Court used the phrase “status as transgender” rather than “gender identity” in describing the first part of the question, since “gender identity” fits more neatly into the terminology of Title VII than a reference to “status.”
None of the members of the Court have addressed the questions presented in these three cases during their judicial careers up to this point, so venturing predictions about how these cases will be decided is difficult lacking pertinent information. The four most recent appointees to the Court with substantial federal judicial careers prior to their Supreme Court appointment – Samuel Alito, Sonia Sotomayor, Neil Gorsuch, and Brett Kavanaugh – have never written a published opinion on sexual orientation or gender identity discrimination, and neither did Chief Justice John Roberts during his brief service on the D.C. Circuit Court of Appeals. However, it seems predictable that the justices most committed to construing civil rights laws narrowly in the context of the time when they were adopted will be skeptical about the argument that the 1964 statute can be interpreted to extend to sexual orientation or gender identity discrimination.
The counsel of record for Bostock is Brian J. Sutherland of Buckley Beal LLP, Atlanta. Clayton County, Georgia, retained Jack R. Hancock of Freeman Mathis & Gary LLP, of Forest Park, Georgia, to submit its response to the Bostock Petition. Counsel of record for Altitude Express is Saul D. Zabell of Bohemia, New York. The brief in opposition was filed on behalf of the Zarda Estate by Gregory Antollino of New York City. Zabell and Antollino were both trial counsel in the case and have pursued it through the appellate process. Several attorneys from Alliance Defending Freedom, the Scottsdale, Arizona, based conservative religious liberty litigation group, represent Harris Funeral Home, and Solicitor General Noel J. Francisco’s office represents the EEOC. John A. Knight of the ACLU Foundation, Chicago, is counsel of record for Aimee Stephens. It is not unusual when the Supreme Court grants review for private parties to seek out experienced Supreme Court advocates to present their arguments to the Court, so some of these attorneys listed on the Petitions and other Briefs will likely not be appearing before the Court when the cases are argued next winter.
Impatient Christians File Suit Against EEOC’s Interpretation of Title VII and Seek Exemption from Recognizing Same-Sex Marriages
The U.S. Pastor Council (on behalf of itself and others similarly situated), and Braidwood Management, Inc., a business claiming to have religious objections concerning the employment of LGBTQ people (on behalf of itself and others similarly situated), have jointly filed suit in the U.S. District Court for the Northern District of Texas (Fort Worth Division), seeking a declaratory judgment that the Equal Employment Opportunity Commission’s interpretation of Title VII to protect LGBTQ people from employment discrimination violates the federal Religious Freedom Restoration Act and the First Amendment, and they seek to enjoin the federal government from enforcing these policies against any employer who objects to homosexual or transgender behavior on religious grounds. U.S. Pastor Council & Braidwood Management Inc. v. Equal Employment Opportunity Commission, Case No. 4:18-cv-00824-O (U.S. Dist. Ct., N.D. Texas, filed March 29, 2019). They seek class certification and nation-wide injunctive relief. Other named defendants include EEOC Chair Victoria A. Lipnic and Commissioner Charlotte A. Burrows, Attorney General William P. Barr, and the United States of America. (Lipnic and Burrows are the only currently serving EEOC commissioners, as Trump’s nominees to fill three vacancies were not confirmed in the last session of the Senate, and the Commission as a body lacks a quorum to act at present.)
The headline’s reference to “impatient Christians” points to the Supreme Court’s unexplained delay in deciding whether to grant writs of certiorari in three pending cases that pose the question whether Title VII can be interpreted, as it has been by the EEOC and some circuit courts of appeals, to prohibit employment discrimination because of an individual’s sexual orientation or gender identity. If the Supreme Court finally takes these cases and decides them during its October 2019 Term, this lawsuit could be at least partially mooted. But the complaint ranges more broadly, tempting the court (and ultimately the Supreme Court) to reconsider two of its constitutional precedents that are not beloved by the Court’s current conservative majority: Employment Division v. Smith and Obergefell v. Hodges.
The docket number of the case indicates that it has been assigned to District Judge Reed O’Connor, which means that it is highly predictable that the plaintiffs will get much of the relief they are seeking from the district court. In earlier lawsuits, Judge O’Connor issued nationwide injunctions against the federal government’s enforcement of Obamacare and Title IX in gender identity cases, disagreeing that the term “discrimination because of sex” could be construed to extend to gender identity. See Franciscan Alliance v. Burwell, 227 F.Supp.3d 660 (N.D. Tex. Dec. 31, 2016) (Obamacare); Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016) (Title IX). Since the current political appointees leading the Justice Department probably agree with the plaintiff’s position on all or most of the claims raised in this complaint, one reasonably suspects that any serious defense can only be mounted by Intervenors, and the government would only appeal pro-plaintiff rulings by Judge O’Connor in order to get a rubber stamp approval from the 5th Circuit on the way to the Supreme Court. Trump has worked hard to cement a conservative majority on the 5th Circuit, having quickly filled five of the vacancies preserved for him by the Senate’s refusal to confirm Obama nominees to the circuit courts. A new vacancy waits to be filled, and more elderly Republican appointees on the circuit (two active Reagan appointees who have been there more than thirty years) are likely to retire soon enough.
The complaint’s first count argues that the government has no compelling reason to enforce a prohibition against discrimination because of sexual orientation or gender identity against employers with religious objections, and thus that the EEOC as a federal agency should be found to be precluded from doing so under the Religious Freedom Restoration Act. The second count argues that because Title VII exempts religious employers from its ban on religious discrimination, it is thereby not a law of “general applicability,” so Employment Division v. Smith, 494 U.S. 872 (1990), is “inapplicable” to the question whether imposing a non-discrimination obligation on employers who are subject to the statute (those with 15 or more employees) violates their constitutional Free Exercise rights under the 1st Amendment. The complaint observes that the ministerial exemption to Title VII that the Supreme Court has found for religious institutions does not extend to businesses, and further does not extend to the non-ministerial employees of religious organizations, thus imposing a burden on both kinds of employers who are subject to Title VII’s ban on sex discrimination. Furthermore, they argue that if the court disagrees with their characterization of Title VII and finds that Employment Division v. Smith would apply in their Free Exercise claim, that decision should be overruled (which, of course, the district court can’t do, but this lawsuit is obviously not intended to stop at the district court). Justice Neil Gorsuch implied in his concurring opinion in Masterpiece Cakeshop last June that the Supreme Court should reconsider this precedent.
In terms of the practical impact of the EEOC’s position, the complaint says in its third count that Braidwood Management’s benefits administrator has amended its employee benefits plans to recognize same-sex marriages, complying with guidance on the EEOC’s website, and Braidwood wants to instruct the administrator to return to a traditional marriage definition, consistent with the employer’s religious beliefs. Thus, part of the declaratory judgment plaintiffs seek would proclaim that employers with religious beliefs against same-sex marriage should be allowed to refuse to recognize them for employee benefits purposes. In several counts, the complaint tempts the court to declare as illegitimate the Supreme Court’s Obergefell decision, and to excuse religious organizations and businesses from having to recognize same-sex marriages, except possibly in states where same-sex marriage became available through state legislation, unlike Texas, where it exists by compulsion of the federal courts (and certainly against the wishes of the state government).
In terms of standing issues, Braidwood points out that the EEOC has actively enforced its interpretation of Title VII by bringing enforcement actions and filing amicus briefs in support of LGBTQ plaintiffs against employers with religious objections, most prominently in the Harris Funeral Home case, in which the EEOC sued a business that had discharged a transgender employee because of the employer’s religious objections. The funeral home prevailed in the district court on a RFRA defense, the trial judge finding that in the absence of RFRA the funeral home would have been found in violation of Title VII. However, the 6th Circuit reversed in part, rejecting the district court’s RFRA analysis and finding a Title VII violation. The funeral home’s petition for certiorari was filed in the Supreme Court last July, but that Court had made no announcement regarding a grant or denial at the time this complaint was filed on March 29 – impatient Christians, again.
The fourth count claims that the EEOC’s requirement that employers post a notice to employees announcing their protection under Title VII is unconstitutionally compelled speech. “Employees who read this sign and see that Braidwood is categorically forbidden to engage in ‘sex’ discrimination will assume (incorrectly) that Braidwood is legally required to recognize same-sex marriage, extend spousal employment benefits to same-sex couples, and allow its employees into restrooms reserved for the opposite biological sex,” says the complaint, indicating that Braidwood’s proprietor “is not willing to have Braidwood propagate this message without sufficient clarification.”
The sixth count summons the Administrative Procedure Act to attack the EEOC’s issuance of guidance on its website concerning its interpretation of Title VII, claiming that this constitutes a “rule” that is subject to judicial review under that statute. The complaint asks the court to “hold unlawful and set aside” the EEOC’s regulatory guidance, invoking Section 706 of the APA. Braidwood Management also claims to speak in this count as representative of all businesses in the U.S. that “object to the constitutional reasoning in Obergefell, excluding employers in states where same-sex marriage was legalized through legislation.”
The complaint lists as plaintiffs’ counsel Charles W. Fillmore and H. Dustin Fillmore of Fort Worth (local counsel in the district court) and Jonathan F. Mitchell of Austin. The heavy gun here is Mitchell, a former Scalia clerk and Texas Solicitor General who has been nominated by President Trump to be Chairman of the Administrative Conference of the United States (ACUS). It seems ironic that Trump’s nominee is suing the federal government: the Justice Department and its head (in his official capacity) and the EEOC and its commissioners (in their official capacity), but despite naming the United States as a defendant, plaintiffs are not suing the president by name (in his official capacity, of course).
Federal Government Asks the Supreme Court to Delay Deciding Whether Title VII Bars Gender Identity Discrimination
The Trump Administration has asked the Supreme Court to hold off for now on deciding whether gender identity discrimination is covered under the ban on employment discrimination “because of sex” in Title VII of the Civil Rights Act of 1964. Solicitor General Noel J. Francisco and several other Justice Department attorneys are listed on a brief filed with the Court on October 24, ostensibly on behalf of the Equal Employment Opportunity Commission (EEOC), arguing that the Court should not now grant review of a decision by the Cincinnati-based 6th Circuit Court of Appeals, which ruled earlier this year that Harris Funeral Homes violated Title VII by discharging Aimee Stephens, a transgender employee, who was transitioning and sought to comply with the employer’s dress code for female employees. The proprietor of the funeral home objected on religious grounds to having an employee whom he regards as a man dressing as a woman at work. R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, No. 18-107.
The government’s move came as something of a surprise, in light of recent news that a memorandum, originating from the Civil Rights Office in the Department of Health and Human Services (HHS), is circulating within the Trump Administration proposing to adopt a regulation defining “sex” in terms solely of genitals and chromosomes and thus, effectively, excluding “gender identity” as part of the definition of sex for purposes of federal law.
The Solicitor General’s brief argues that instead, the Court should focus on one or both of two Petitions now pending that seek review of decisions by the 2nd Circuit and the 11th Circuit on the question whether sexual orientation discrimination is prohibited by Title VII. In the former case, Zarda v. Altitude Express, the en banc 2nd Circuit reversed prior circuit precedents and ruled that sexual orientation claims are covered by Title VII, following the lead of the 7th Circuit in Hively v. Ivy Tech Community College (2017). In the other case, Bostock v. Clayton County, an 11th Circuit three-judge panel rejected a similar sexual orientation discrimination claim, and the circuit court turned down a petition for rehearing by the full circuit. In the Supreme Court, these cases are Bostock v. Clayton County Board of Commissioners, No. 17-1618, and Altitude Express v. Zarda, No. 17-1623.
In those two cases, the central question for the Court to decide is whether Title VII’s use of the term “sex” should be construed as the Trump Administration contends that it should be, as the simple difference between male and female as identified at birth, usually by the doctor’s visual inspection of genitals, or whether it should receive a broad interpretation that the EEOC and some lower federal courts have embraced, extending protection against discrimination to LGBTQ people because of their sexual orientation or gender identity as form of “discrimination because of sex.” This argument, for those preoccupied with the presumed legislative intent of the drafters and adopters of legislation, is based on the proposition that the Congress of 1964 did not intend to protect LGBTQ people from discrimination when they voted to include “sex” as a prohibited ground of employment discrimination in Title VII.
Referring to the pending sexual orientation case petitions, General Francisco’s brief argues, “If the Court grants plenary review in Zarda, Bostock, or both to address that question, its decision on the merits may bear on the proper analysis of the issues petitioner raises [in this case]. The court of appeals here relied on the reasoning of decisions (including Zarda) holding that Title VII’s prohibition on sex discrimination extends to sexual-orientation discrimination. Accordingly, the Court should hold the petition in this case pending its disposition of the petitions in Zarda and Bostock and, if certiorari is granted in either or both of those cases, pending the Court’s decision on the merits.” If the Court were to grant review in Zarda and/or Bostock, oral argument would be held sometime in the Spring with a decision expected by the end of June 2019, at which time the Court could send the Funeral Homes case back to the 6th Circuit for reconsideration in light of its decision in the sexual orientation cases, avoiding deciding the gender identity question itself. The Supreme Court has yet to issue a ruling on the question whether either the Constitution or federal statues protect transgender people from discrimination because of their gender identity.
Francisco’s brief also argues that the Court should not grant review in the Funeral Home case even if it decides not to review the sexual orientation cases. “To be sure,” says the brief, “the United States disagrees with the court of appeals’ decision. As relevant here, the court’s analysis of whether petitioner engaged in improper sex stereotyping reflects a misreading of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The court’s further conclusion that gender-identity discrimination necessarily constitutes discrimination because of sex in violation of Title VII – although it was unnecessary to the ultimate result the court reached in this case – is also inconsistent with the statute’s text and this Court’s precedent. Both of those questions are recurring and important.”
This immediately raises the question why the Court should refuse to grant review to decide questions that are “recurring and important”? The Solicitor General’s response to that question appears to be improvised to cover over a difficult political transition that will eventually take place at the EEOC, the agency that filed suit against the Funeral Home on behalf of Aimee Stephens and is nominally the respondent on this petition at the Supreme Court.
President Trump has nominated three commissioners, one of whom, out lesbian Chai Feldblum (who was first appointed by President Obama and whose current term expires at the end of this year), has inspired fervent opposition from several Republican Senators. The other two nominees are Republicans whom the current Senate leadership would eagerly approve, but the three nominations were presented as a package, in recognition of the statutory requirement that no more than three of the five EEOC commissioners may be members of the same party, and the package has not moved in the Senate because of opposition to Feldblum. As of now, the EEOC has three commissioners – two Democrats and one Republican – and continues to take discrimination complaints under Title VII from LGBTQ people. If the package of nominees is approved, the new Republican majority of commissioners would likely come into line with the Justice Department’s position that Title VII does not cover such claims. If the “package” is not approved during the lame duck session of Congress, the EEOC will not be able to decide cases beginning on January 1, because it will lack a quorum of at least three Senate-confirmed commissioners. And the question of which party controls the next Senate will certainly affect which Trump nominees can be approved after January 3 when the new Senate convenes.
Setting aside the politics for the moment, however, the Solicitor General’s pragmatic argument is that there is a significant split among the circuit courts on the sexual orientation issues, which requires the Supreme Court to resolve with some urgency. But, says the brief, “Fewer circuits have addressed the questions presented in this case, and the panel decision here appears to be the first court of appeals decision to conclude in a Title VII case that gender identity discrimination categorically constitutes discrimination because of sex under that statute. If the Court determines that the question raised in Zarda and Bostock does not warrant plenary review at this time, the questions presented here would likewise not appear to warrant review at this juncture.”
Attorneys from the ACLU representing Aimee Stephens also filed a response to the Harris Funeral Homes’ petition on October 24. They argue that the Court should deny the petition.
They note that the Funeral Homes petition’s first “Question Presented” is “Whether the word ‘sex’ in Title VII’s prohibition on discrimination ‘because of sex’ meant ‘gender identity’ and included ‘transgender status’ when Congress enacted Title VII in 1964.” They argue that this case is a “poor vehicle for addressing petitioner’s first question because deciding it would not affect the judgment” of the lower court. This is because, simply stated, the 6th Circuit decided this case on alternative grounds, one of which was relying on a sex stereotyping theory (that the Funeral Home fired Stephens for not complying with the employer’s stereotype about how a genitally-male person should groom and dress), the other of which identified discrimination because of gender identity as a form of sex discrimination. So answering the first question in the negative would still leave the lower court’s judgment intact on the first – and widely-accepted – sex stereotyping theory. Note that this first “Question Presented” is only relevant at all if the Court attributes any special weight to what the adaptors of statutory language thought it meant at the time they adopted it: an originalist approach to statutory interpretation that the Court itself rejected in Oncale v. Sundowner Offshore Services in 1998.
The second question in the Funeral Homes petition is whether Price Waterhouse v. Hopkins “prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.” As to that, the ACLU’s brief argues that the second question “was not adjudicated below and is not properly presented” to the Court in this case, because, first, the 6th Circuit held that Stephens was fired “based on multiple sex stereotypes, not only those related to the dress code,” and second, that the 6th Circuit “expressly did not address the lawfulness of sex-specific dress codes” in its decision, and that “sex-specific restroom policies” – an issue alluded to in the Funeral Homes petition — “are not at issue in this case.” Citing cases from many different circuits, the brief also argues that the 6th Circuit’s ruling “does not conflict with Price Waterhouse or any court of appeals.” Over the years since 1989, numerous circuit courts have accepted transgender discrimination claims using the sex stereotyping theory that the Supreme Court articulated in Price Waterhouse.
The government’s brief is undoubtedly disappointing to Alliance Defending Freedom (ADF), the right-wing religious litigation group that is representing the Funeral Homes and urgently seeks review in this case, seemingly confident that the newly constituted Republican majority in the Supreme Court would likely overturn the 6th Circuit’s decision. After the Supreme Court Clerk listed the two sexual orientation petitions on the agenda for the Court’s end-of-September conference, ADF sent a letter to the Clerk, suggesting that the Court defer deciding whether to review those cases until after briefing was completed on the Funeral Homes petition – which was delayed because the Solicitor General twice requested and received from the Court an extension of time to file its response on behalf of the EEOC. ADF argued that the underlying questions in all three cases were related, so the Court should take them up together. Shortly after the letter was entered on the Court’s docket, the sexual orientation cases were removed from the agenda for the Court’s cert conference, and they had not been relisted for consideration. Now ADF finds the government arguing that the Court should not take up the cases together, and that the gender identity case should be deferred until the sexual orientation cases are decided, and should not even be addressed by the Court now if the Court decides not to take up the sexual orientation cases! ADF would likely see this as a lost opportunity to get the new Supreme Court majority to cut short the successful campaign by civil rights litigators to get federal courts to find protection for LGBTQ people under federal sex discrimination laws, an easier route to protection than passage of the Equality Act, which has been languishing in Congress for several years, denied even a hearing by the Republican-controlled chambers.
Although the S.G. attributed its requests for extensions of time to the need to deal with many other cases, it is possible that the S.G. was stalling in hopes that the new majority of EEOC commissioners would be quickly confirmed, and that the Commission would bring its position in line with the Justice Department (DOJ). Attorney General Jeff Sessions issued an internal DOJ memo on October 4, 2017, rejecting any interpretation of Title VII (or other federal sex discrimination laws, such as Title IX of the Education Amendments Act or the Fair Housing Act) that covered gender identity or sexual orientation. During the early months of the Trump Administration, the Justice Department and the Education Department (DOE) abandoned the Obama Administration’s interpretation of Title IX, getting the Supreme Court to cancel an argument under that statute in transgender teen Gavin Grimm’s lawsuit against a Virginia school district over bathroom access, and DOE has stopped accepting and process discrimination claims from transgender students. Thus, DOJ may feel that it can overturn the Obama Administration’s expansive interpretation of sex discrimination laws without having to win a case in the Supreme Court. The government’s brief devotes several pages to restating the Sessions memorandum’s interpretation of Title VII and criticizing the 6th Circuit’s decision on the merits.
Court watchers noted something interesting about the brief filed by the Solicitor General. The list of attorneys on the brief does not include any lawyers from the EEOC, which is unusual when the government is representing a federal agency in a Supreme Court appeal of one of their lower court victories. In this case, of course, DOJ and the EEOC have a strong disagreement about the correct interpretation of Title VII, so DOJ, representing the Trump Administration’s position, is not inclined to let the lingering Democratic majority at the Commission have any say in how this case is argued at the Supreme Court.
With the government opposing its own victory in the lower court, the only party left to defend the lower court’s ruling is Aimee Stephens with her counsel from the ACLU, whose brief is signed by attorneys from the ACLU Foundation in Chicago, the ACLU Fund of Michigan, the ACLU LGBT Rights Project headquartered in New York, and the ACLU Foundation’s office in Washington.
Of course, if the Supreme Court ultimately decides to grant review in any of these Title VII cases, it can expect a barrage of amicus curiae briefs similar to the record-setting number filed in last term’s Masterpiece Cakeshop case.
A unanimous three-judge panel of the U.S. Court of Appeals for the 6th Circuit ruled on March 7 in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, Inc., 2018 WL 1177669, 2018 U.S. App. LEXIS 5720, that a Michigan funeral home violated federal anti-discrimination law by terminating a funeral director who announced that she would be transitioning during her summer vacation and would return to work as a woman. The 6th Circuit has appellate jurisdiction over federal cases from Michigan, Ohio, Kentucky and Tennessee.
Rejecting a ruling by U.S. District Judge Sean F. Cox that the funeral home’s action was protected by the federal Religious Freedom Restoration Act (RFRA), Circuit Judge Karen Nelson Moore wrote for the court that the government’s “compelling interest” to eradicate employment discrimination because of sex took priority over the religious beliefs of the funeral home’s owner.
This is the first time that any federal appeals court has ruled that RFRA would not shelter an employer from a gender identity discrimination claim by a transgender plaintiff. Although the 6th Circuit has allowed Title VII claims by transgender plaintiffs in the past under a “gender stereotype” theory, this is also the first time that the 6th Circuit has explicitly endorsed the Equal Employment Opportunity Commission’s conclusion that gender identity discrimination is a form of sex discrimination, directly prohibited by Title VII. Judge Moore drew a direct comparison to a Title VII decision by the 7th Circuit in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017), which held similarly that sexual orientation discrimination is a form of sex discrimination, thus potentially joining in the widening split of federal appellate courts over a broad construction of Title VII to extend to both kinds of claims.
Alliance Defending Freedom’s involvement as volunteer counsel for the funeral home makes it highly likely that the Supreme Court will be asked to review this ruling.
The lawsuit was filed by the EEOC, which sued after investigating Aimee Stephens’ administrative charge that she had been unlawfully terminated by the Michigan funeral home. After the district court ruled in favor of the funeral home, the EEOC appealed to the 6th Circuit and Stephens, represented by the ACLU, was granted standing to intervene as co-plaintiff in the appeal.
“While living and presenting as a man,” wrote Judge Moore, “she worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., a closely held for-profit corporation that operates three funeral homes in Michigan. Stephens was terminated from the Funeral Home by its owner and operator, Thomas Rost, shortly after Stephens informed Rost that she intended to transition from male to female and would represent herself and dress as a woman while at work.”
Rost identifies himself as a Christian who espouses the religious belief that “the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if he were to permit one of the Funeral Home’s funeral directors to deny their sex while acting as a representative of the organization” or if he were to “permit one of the Funeral Home’s male funeral directors to wear the uniform for female funeral directors while at work.”
“In particular,” related Judge Moore, “Rost believes that authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit ‘in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.’”
As such, Rost claimed that his company’s obligation to comply with Title VII should be excused in this case because of the later-enacted Religious Freedom Restoration Act (RFRA), which provides that the federal government may not substantially burden a person’s free exercise of religion unless it has a compelling justification for doing so, and that the rule the government seeks to apply is narrowly tailored to burden religious practice no more than is necessary to achieve the government’s goal.
The funeral home moved to dismiss the case, arguing that Title VII does not ban discrimination against a person because they are transgender or transitioning, that the funeral home could reasonably require compliance with its dress code, and that requiring the funeral home to allow a “man dressed as a woman” to serve as a funeral director would substantially burden the funeral home’s free exercise of religion, as defined by Rost, and violate its rights under RFRA.
Prior to the Supreme Court’s 2014 decision, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, there was no Supreme Court authority for the proposition that a funeral home, or any other for-profit business, could claim to “exercise religion,” but in that case the Court ruled that because business corporations are defined as “persons” in the U.S. Code, they enjoy the same protection as natural persons under RFRA. At least in the case of a closely-held corporation such as Hobby Lobby, with a small group of shareholders who held the same religious beliefs on the issue in question – a federal regulation requiring that employer health plans cover various forms of contraception to which Hobby Lobby’s owners took exception on religious grounds – the corporation was entitled to protection under RFRA based on the religious views of its owners. The Harris Funeral Home is analogous to Hobby Lobby Stores, albeit operating on a smaller scale, so Rost’s religious views on gender identity and transitioning can be attributed to the corporation for purposes of RFRA.
Interestingly, this would not have been an issue in the case had Stephens brought the lawsuit on her own behalf, without the EEOC as a plaintiff. The 6th Circuit has interpreted RFRA to impose its restriction on the federal government but not on private plaintiffs suing to enforce their rights under federal statutes. Since EEOC is the plaintiff, however, this is a case of the government seeking to impose a burden on the free exercise of religion by a business corporation, and RFRA is implicated.
District Judge Cox, bound by 6th Circuit precedent to find that Stephens had a potentially valid discrimination claim under Title VII (see Smith v. City of Salem, Ohio, 378 F. 3d 566 (2004)), nonetheless concluded that ordering a remedy for Stephens would substantially impair the Funeral Home’s rights under RFRA, granting summary judgment to the funeral home. In another contested issue in the case, Judge Cox ruled that the EEOC could not pursue in this lawsuit a claim that the Funeral Home’s policy of paying for male employees’ uniforms but not for female employees’ uniforms violated Title VII’s sex discrimination provision. Cox held that this claim did not grow naturally out of the investigation of Stephens’ discrimination charge, and so must be litigated separately.
The 6th Circuit reversed on both points. As to the uniform issue, the Court found that the EEOC’s investigation of Stephens’ discrimination claim naturally led to investigating the company’s uniform policy, since the question of which uniform Stephens could wear was directly involved in Rost’s decision to terminate her. The court reversed the summary judgment and remanded the question back to the district court to determine whether the uniform policy, which the funeral home has since modified to provide some subsidy for the cost of women’s uniforms, violates Title VII.
More significantly, the court found that Judge Cox erred on several key points in his analysis of the company’s summary judgment motion.
Cox had determined that the 6th Circuit does not recognize gender identity claims under Title VII, as such, but in rejecting a prior motion to dismiss the case had concluded that Stephens could proceed on the theory that she was fired for failing to conform to her employer’s stereotype about how men are supposed to present themselves and dress in the workplace. Rost stated in his deposition that he objected to men dressing as women – which is how he views Stephens in light of his religious belief that gender identity is just a social construct that violates God’s plan and not a reality.
After reviewing the court’s prior transgender discrimination decisions, Judge Moore concluded that the EEOC’s view of the statute to cover gender identity discrimination directly, without reference to sex stereotypes, is correct. “First,” she wrote, “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”
She referred to the 7th Circuit’s Hively decision, a sexual orientation case, which employed the same reasoning to find that Title VII covers sexual orientation claims. “Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code. The answer quite obviously is no. This, in and of itself, confirms that Stephens’ sex impermissibly affected Rost’s decision to fire Stephens.”
The court also referred to a landmark ruling by the U.S. District Court in the District of Columbia, Schroer v. Billington, 577 F. Supp. 2nd 293 (D.D.C. 2008), which allowed a transgender discrimination claim against the Library of Congress, which had withdrawn an employment offer when informed that the applicant was transitioning.
And, of course, the court noted the Supreme Court’s Price Waterhouse v. Hopkins ruling (490 U.S. 228 (1989)), stating that Title VII requires “gender” to be “irrelevant to employment decisions.” Moore wrote, “Gender (or sex) is not being treated as ‘irrelevant to employment decisions’ if an employee’s attempt or desire to change his or her sex leads to an adverse employment decision.”
Of course, Moore noted, transgender discrimination implicates the sex stereotype theory as well. Referring to Smith v. City of Salem, she wrote, “We did not expressly hold in Smith that discrimination on the basis of transgender status is unlawful, though the opinion has been read to say as much – both by this circuit and others,” and then proceeded to say as much! “Such references support what we now directly hold: Title VII protects transgender persons because of their transgender or transitioning status, because transgender or transitioning status constitutes an inherently gender non-conforming trait.”
In light of this holding, the funeral home had to be found in violation of the statute unless it was entitled to some exception or some affirmative defense. One argument made in an amicus brief in support of the funeral home suggested that a person employed as a funeral director could be covered by the constitutionally-mandated ministerial exception recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012). The Supreme Court said that it is a component of free exercise of religion that if somebody is being employed to perform religious functions, the government could not dictate the hiring decision. The court rejected this defense, noting that the funeral home has conceded that it is not a “religious organization” and was not claiming the “ministerial exception” for any of its employees. Furthermore, even if the funeral home tried to claim the exception, the court found it would not apply to the position of a funeral director in a for-profit funeral home business. Stephen was not employed to serve a religious function, and the duties of a funeral directly only incidentally involved any religious function in the way of facilitating participation of religious funeral celebrants.
Turning to the RFRA defense, the court first dispensed with the argument that as Stephens had intervened as a co-plaintiff, RFRA had been rendered irrelevant because this was no longer purely a government enforcement case. The EEOC remains the principal appellant in the case, and the court would not dismiss the RFRA concern on that basis.
However, the court found, significantly, that requiring the funeral home to employ Stephens after her transition would not impose a “substantial” burden within the meaning of RFRA. The funeral home argued that the “very operation of the Funeral Home constitutes protected religious exercise because Rost feels compelled by his faith to serve grieving people through the funeral home, and thus requiring the Funeral Home to authorize a male funeral director to wear the uniform for female funeral directors would directly interfere with – and thus impose a substantial burden on – the Funeral Home’s ability to carry out Rost’s religious exercise of caring for the grieving.”
Rost suggested two ways this would impose a substantial burden. First, he suggested, letting Stephens dress as a woman “would often create distractions for the deceased’s loved ones and thereby hinder their healing process (and the Funeral Home’s ministry),” and second, “forcing the Funeral Home to violate Rost’s faith would significantly pressure Rost to leave the funeral industry and end his ministry to grieving people.” The court did not accept either of these as “substantial within the meaning of RFRA.”
For one thing, a basic tenet of anti-discrimination law is that businesses may not rely on customer preferences or biases as an excuse to refuse to employ people for a reason forbidden by Title VII. Courts have ruled that even if it is documented that employing somebody will alienate some customers, that cannot be raised as a defense to a valid discrimination claim. “We hold as a matter of law,” wrote Moore, “that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.”
The court rejected Rost’s argument that the EEOC’s position put him to the choice of violating his religious beliefs by, for example, paying for a women’s uniform for Stephens to wear, or otherwise quitting the funeral business. The court pointed out that there is no legal requirement for Rost to pay for uniforms for his staff. This is distinguishable from the Hobby Lobby case, where the issue was a regulation requiring employers to bear the cost of contraceptive coverage. Further, wrote Moore, “simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA,” because “as a matter of law, tolerating Stephens’ understanding of her sex and gender identity is not tantamount to supporting it.”
Since the court found no substantial burden, it did not necessarily have to tackle the question of the government’s justification for imposing any burden at all. But with an eye to a likely appeal of this case, the court went ahead to determine whether, if it is wrong about this and the Supreme Court were to find that this application of Title VII to Rost’s business does impose a substantial burden, it passes the strict scrutiny test established by RFRA.
As to this, the court reached perhaps its most significant new ruling in the case: Having identified gender identity claims as coming within the ambit of sex discrimination claims, the court had to determine whether the government has a compelling interest and that enforcing Title VII is the least intrusive way of achieving that interest. Even the Funeral Home was willing to concede that on a general level the government has a compelling interest, expressed through Title VII, in eradicating sex discrimination in the workplace, but the Funeral Home argued that interest did not justify this particular case, compelling it to let a man dress as a woman while working as a funeral director. “The Funeral Home’s construction of the compelling-interest test is off-base,” wrote Moore. “Rather than focusing on the EEOC’s claim – that the Funeral Home terminated Stephens because of her proposed gender nonconforming behavior – the Funeral Home’s test focuses instead on its defense that the Funeral Home merely wishes to enforce an appropriate workplace uniform. But the Funeral Home has not identified any cases where the government’s compelling interest was framed as its interest in disturbing a company’s workplace policies.” The question, according to the court’s interpretation of Supreme Court precedents, is whether “the interests generally served by a given government policy or statute would not be ‘compromised’ by granting an exemption to a particular individual or group.”
“Failing to enforce Title VII against the Funeral Home means the EEOC would be allowing a particular person – Stephens – to suffer discrimination, and such an outcome is directly contrary to the EEOC’s compelling interest in combating discrimination in the workforce.” And, continued Moore, “here, the EEOC’s compelling interest in eradicating discrimination applies with as much force to Stephens as to any other employee discriminated against based on sex.”
The court specifically rejected the Funeral Home’s argument that its religious free exercise rights should take priority as being derived from the 1st Amendment, because that would go directly against Supreme Court precedent, which has rejected the idea that individuals and businesses generally enjoy a 1st Amendment right to refuse to comply with laws because of their religious objections. Congress did not have authority, in the first version of RFRA that it passed and that was invalidated by the Supreme Court, to overrule a Supreme Court decision. What RFRA does is to create a statutory right, not to channel a constitutional right, and the statutory right is circumscribed to cases where a federal law imposes a substantial burden on free exercise without having a compelling justification for doing so. This does, not, according to the 6th Circuit, elevate a business’s free exercise rights above an individual’s statutory protection against discrimination. (Indeed, Justice Samuel Alito said as much in his Hobby Lobby opinion for the Supreme Court, albeit in the context of race discrimination.)
Finally, as required by RFRA, the court found that requiring compliance with Title VII was the least restrictive means available for the government to achieve its compelling interest in eradicating employment discrimination because of sex. The district court had suggested that the EEOC could pursue a less restrictive alternative by getting the parties to agree to a gender-neutral uniform for the workplace, thus removing Rost’s objection to a “man dressed as a woman.” “The district court’s suggestion, although appealing in its tidiness, is tenable only if we excise from the case evidence of sex stereotyping in areas other than attire,” wrote Judge Moore. “Though Rost does repeatedly say that he terminated Stephens because she ‘wanted to dress as a woman’ and ‘would no longer dress as a man,’ the record also contains uncontroverted evidence that Rost’s reasons for terminating Stephens extended to other aspects of Stephens’s intended presentation.” It was not just about the uniforms.
The court could have reversed the summary judgment and sent the case back to the district court to reconsider its holding and determine whether a trial was needed, but in fact there are no material facts in dispute once one treats the 6th Circuit’s opinion as presenting the law of the case on interpreting Title VII and RFRA. With no material facts to be resolved at this stage, the 6th Circuit directly granted summary judgment to the EEOC on its claim that the Funeral Home violated Title VII and is not entitled to a defense under RFRA. Stephens won on the merits, unless the Funeral Home is successful in getting the Supreme Court to take the case and reverse the 6th Circuit’s decision.
The appeal was argued for the EEOC by Anne Noel Occhialinio, and for Stephens by ACLU attorney John A. Knight. Douglas G. Wardlow of Alliance Defending Freedom argued on behalf of the Funeral Home. The case attracted amicus briefs from Lambda Legal, Americans United for Separation of Church and State, Cleveland-Marshall College of Law, Private Rights/Public Conscience Project (New York) and various law firms offering pro bono assistance to amici on briefs.
Judge Moore was appointed to the court by President Bill Clinton. The other judges on the unanimous panel were Helene N. White, appointed by President George W. Bush, and Bernice W. Donald, appointed by President Barack Obama. Showing a recent trend in diversifying the federal bench, the panel was, unusually, made up entirely of female circuit judges. As a result of several appointments by President Obama, half of the active judges on the 6th Circuit are women, the only federal appellate court yet to achieve gender parity.
Justice Department Tells 2nd Circuit That Gays Are Not Protected from Discrimination Under Federal Civil Rights Law
The U.S. Department of Justice filed a brief on July 26 with the New York-based U.S. Court of Appeals for the 2nd Circuit, weighing in on the question whether Title VII of the Civil Rights Act of 1964 bans discrimination because of sexual orientation. Not surprisingly, the Trump Administration’s answer is “No.”
Title VII lists forbidden grounds for employment discrimination: race or color, religion, sex and national origin. After it went into effect in July 1965, both the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcement of the statute, and the federal courts quickly took the position that people who encountered discrimination because they were gay or transgender could not pursue a claim under this law. Both the administrative agency and the federal courts held fast to that position until relatively recently.
That consensus began to break down early in this century, first in response to discrimination claims by transgender people, as courts and then the EEOC (in 2012) accepted the argument that discriminating against somebody because they were transitioning or had transitioned was actually discrimination because of sex. The rationale they adopted derived from a 1989 decision by the Supreme Court, which recognized that discrimination against people for failing to comply with the employer’s stereotyped view about how people of a particular sex should behave, dress, or otherwise act, was actually discrimination because of their sex. The 1989 case involved a woman who was denied a partnership in an accounting firm because some of the partners thought she was not sufficiently feminine to meet their image of a “lady partner,” and her immediate boss told her she should get her hair styled and start wearing makeup and jewelry if she wanted to be a partner.
By 2015, the EEOC had taken the analysis one step further to cover sexual orientation claims. It recognized that having a same-sex attraction violates gender stereotypes, similarly to the transgender cases, but also drew analogies to cases where courts found that discriminating against an employee for being in an interracial relationship was a form of race discrimination, called associational discrimination. Further, the EEOC decided that it was really not plausible to distinguish between sexual orientation discrimination and sex discrimination, since both were concerned with treating people differently because of their sex.
Until this year, no federal appellate court had accepted these theories, but on April 4, the full bench of the Chicago-based U.S. Court of Appeals for the 7th Circuit became the first federal appeals court to rule that Title VII bans sexual orientation discrimination. Reversing its prior precedents, the court accepted the EEOC’s analysis in a lawsuit by Kimberly Hively, a lesbian who had been denied a tenure-track position by an Indiana community college. The college decided not to appeal, taking the position that it had not discriminated at all, so the case was sent back for trial to the district court.
Meanwhile, however, the same issue was being litigated in other parts of the country. In the Atlanta-based 11th Circuit, a sexual orientation discrimination claim by Jameka Evans against a Georgia hospital that had been dismissed by the district court was revived by the court of appeals, but on a narrower theory. In common with several other circuits, the 11th Circuit will accept Title VII claims from gay plaintiffs who allege that they suffered discrimination because of their failure to conform to gender stereotypes. In this case, while a three-judge panel ruled 2-1 to affirm the trial court’s rejection of the plaintiff’s sexual orientation discrimination claim, the panel sent the case back to the trial court to allow the plaintiff to pursue a sex stereotyping claim. One member partially dissented, Judge William Pryor (who had been on Trump’s potential Supreme Court list), finding no basis for any Title VII claim by the plaintiff. Another member of the court agreed to send the case back, but argued that Title VII should be interpreted to cover sexual orientation claims. A third member found that the panel was bound by circuit precedent to reject the sexual orientation claim, but agreed that the plaintiff should have a chance to pursue a sex stereotype claim. The 11th Circuit denied a petition to reconsider the Evans case “en banc” (by the full bench) a few weeks ago, and Lambda Legal announced that it will petition the Supreme Court to review the panel decision. Lambda has until the first week of October to file its petition.
Meanwhile, however, within the 2nd Circuit, at least two federal district court judges have recently refused to dismiss sexual orientation claims under Title VII, finding that the circuit’s acceptance of the “associational theory” in a race discrimination case means that the court should accept sexual orientation discrimination claims. Several other district judges have dismissed such claims, concluding that until the court of appeals explicitly overrules its earlier precedents, the trial judges are bound to follow them. A few months ago, confronted by petitions for en banc review in three different cases, the Circuit announced that it would reconsider the panel decision in Estate of Donald Zarda v. Altitude Express.
In Zarda, the district court had dismissed a Title VII claim but allowed the case to go to trial under New York State’s Human Rights Law, which expressly outlaws sexual orientation discrimination. The jury ruled in favor of the employer, although it is questionable whether the jury was properly instructed about how to weigh the evidence. The plaintiffs appealed the dismissal of the Title VII claim. A three-judge panel affirmed the district court’s dismissal, while noting that recent developments in the law could justify reconsideration by the full 2nd Circuit bench. In a case decided by a different three-judge panel at around the same time, Christiansen v. Omnicom, the panel also upheld dismissal of a sexual orientation claim, but sent the case back to the district court for reconsideration as a sex stereotyping claim, and two of the judges joined a concurring opinion suggesting that it was time for the 2nd Circuit to reconsider the sexual orientation issue en banc in an “appropriate case.” However, after granting en banc review in Zarda, the circuit court denied a petition for en banc review in Christiansen!
Briefs were due from the plaintiff’s side in the Zarda appeal during the last week in June. The EEOC, consistent with its interpretation of the statute, filed an amicus (friend of the court) brief in support of the Zarda. (Zarda, a sky-diving instructor, died in a diving accident after starting his discrimination case, so the lawsuit is now being pursued by his executors, seeking money damages for the estate.) Briefs were due by July 26 from the employer and any amicus parties supporting its position. After some suspense about what the Trump Administration might do, the Justice Department filed its brief right at the deadline.
It is somewhat unusual for the government to file an amicus brief in opposition to a position taken by a federal agency, and it is also unusual for the government to file a brief in a case between private parties – a former employee versus a business – but the federal government has a significant interest in this case, and the politics of EEOC v. DOJ are unusual because of the timing. Until this month, the majority of the EEOC Commissioners have been appointees of President Obama. They decided the key sexual orientation case two years ago by a vote of 3-2, with the Republican commissioners dissenting. Upon confirmation of Trump’s appointees to fill some vacancies, control of the EEOC will switch over to Republican hands. But for now, the EEOC continues to pursue sexual orientation discrimination cases under Title VII, and has even filed some new lawsuits this year despite the change of administrations in January. On the other hand, the Justice Department reflects the views of the new administration, which are consistent with those expressed by 7th Circuit Judge Diane Sykes (also on Trump’s potential Supreme Court list), who wrote a dissenting opinion in the Hively case.
Why does the Trump Administration have a strong interest in a case between private parties? Because Title VII has provisions banning sex discrimination in the federal workforce, and because the president’s political base and the Republicans in Congress stand in opposition to outlawing sexual orientation discrimination. This is clear from the failure of Republican legislators to co-sponsor the Equality Act, a bill that would amend Title VII to add sexual orientation and gender identity or expression to the statutory list of forbidden grounds of employment discrimination. A few Republicans were co-sponsors of the Employment Non-Discrimination Act, a narrower bill that was pending in Congress from the mid-1990s through Obama’s first term until it was supplanted by the Equality Act, but not enough to call that bipartisan legislation. The Employment Non-Discrimination Act came up for floor votes once in each house of Congress but in different sessions of Congress. On both of those occasions it received few votes from Republican legislators, and their party’s platform never endorsed it.
The Justice Department’s brief, noting the EEOC’s position in the case, states that “the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” And, almost needless to say, the Justice Department under the outspokenly anti-gay Jeff Sessions is not persuaded by any of the EEOC’s arguments. The brief argues that Congress did not intend to ban sexual orientation discrimination in 1964 when it enacted Title VII and that should be the end of the matter. The failure of Congress to approve any amendment to add sexual orientation to the law is cited as evidence of continuing legislative intent, and the brief argues that only Congress can change the law. It argues at length that the theories embraced by the EEOC and the 7th Circuit are mistaken interpretations of the Supreme Court’s rulings on sex stereotyping and associational discrimination, and that there is a distinct difference between sex discrimination and sexual orientation discrimination, despite statements by many federal judges that they have difficulty drawing the line between the two.
The 2nd Circuit will not be oblivious to the political nature of the government’s opposition. The concurring opinion in the Christiansen case, written by 2nd Circuit Chief Judge Robert Katzmann, virtually endorsed the EEOC’s interpretation of the statute while calling for the circuit to reconsider its earlier precedents. And a majority of the judges who will sit on the en banc panel were appointed by Bill Clinton or Barack Obama and have generally taken a more liberal approach to interpreting Title VII. The circuit’s earlier precedents that are being reconsidered were issued by three-judge panels at a time when the arguments for allowing sexual orientation discrimination claims were not nearly as well developed as they have been in recent years, and the circuit has accepted the associational discrimination theory in a race discrimination case after those earlier cases were decided. It is likely to see that theory’s applicability here, as the district judges have commented. However, if the Supreme Court decides to grant Lambda Legal’s petition to review the 11th Circuit case, it is possible that the 2nd Circuit will hold up on deciding the Zarda appeal until the Supreme Court has spoken. Interesting timing issues will arise this fall. The 2nd Circuit argument is scheduled for late in September, before the Supreme Court will begin its fall term and start announcing whether it will grant petitions for review filed over the summer.
The brief filed by Altitude Express in opposition to the appeal has raised significant jurisdictional arguments that would give the 2nd Circuit a way out of deciding this appeal on the merits, if the judges are so inclined. That brief argues that when he filed his initial discrimination charge with the EEOC, Donald Zarda expressly disclaimed making a sexual orientation discrimination claim under Title VII, relying instead on the allegation that he suffered discrimination for failing to comply with sex stereotypes. That was the theory he initially presented in his federal court complaint under Title VII as well, and it was dismissed by the trial judge, who opined that Zarda’s factual allegations were not sufficient for a sex stereotyping claim. Zarda only pressed a sexual orientation claim under the New York State Human Rights Law. Thus, Altitude Express argues, he cannot now argue for a sexual orientation discrimination claim under Title VII, because the statute requires that any claim first be presented to the administrative agency, and further that any ruling by the court of appeals on that question would be, in effect, an advisory opinion, as the jury has already ruled against his sexual orientation discrimination claim. There’s no telling how the 2nd Circuit will respond to these arguments, but one suspects that if they had serious doubts about jurisdiction, they would not have granted the en banc petition.
In the meantime, however, it is clear that if the Supreme Court grants review in the 11th Circuit Evans case, the federal government, represented by the Solicitor General, will come into the case against the plaintiff, and by then the EEOC will be in Republican control and will probably not be filing a separate brief. Once again, the Trump Administration is actively disavowing the LGBT-supportive stance that the candidate claimed during the election last year. The brief was filed just as Trump was tweeting his decision to bar transgender people from military service, which seemed no coincidence.
As the 2nd Circuit Court of Appeals ponders three petitions asking for en banc consideration of the question whether Title VII of the Civil Rights Act of 1964 can be interpreted to ban sexual orientation discrimination as a form of sex discrimination, a federal trial judge in Manhattan has ruled that “in light of the evolving state of the law,” it would be “imprudent” for the court to grant a motion to dismiss a gay plaintiff’s sexual orientation discrimination claim.
Senior District Judge Alvin K. Hellerstein, appointed by Bill Clinton in 1998, issued his ruling in Philpott v. State University of New York on May 3, the day after the third en banc petition was filed. An en banc hearing in the 2nd Circuit involves participation by all eleven active judges in the circuit, plus any senior judges who participated in a three-judge panel decision that is being reheard en banc. Appeals are normally heard by three-judge panels, which are bound to follow existing circuit precedents. Only an en banc panel (or the Supreme Court) can reconsider and reverse such precedents.
The 2nd Circuit ruled in 2000, in the case of Simonton v. Runyon, that Title VII could not be interpreted to forbid sexual orientation discrimination. This holding was reiterated by a second panel in 2005, in Dawson v. Bumble & Bumble, and yet again this year on March 27 in Christiansen v. Omnicom Group. However, the 2nd Circuit’s Chief Judge, Robert Katzmann, who was sitting as a member of the panel in Christiansen, wrote a concurring opinion, joined by one of the other judges, arguing that the issue should be considered en banc in “an appropriate case.” Katzmann’s discussion basically embraced the arguments articulated by the Equal Employment Opportunity Commission in its 2015 decision holding that David Baldwin, a gay air traffic controller, could bring a sexual orientation discrimination claim under Title VII against the U.S. Department of Transportation.
The first of the en banc petitions was filed on April 19 in Cargian v. Breitling USA, Inc., in which another Manhattan trial judge, George B. Daniels, dismissed a gay watch salesman’s Title VII sexual orientation discrimination claim, finding that 2nd Circuit appellate precedents binding on the court rejected sexual orientation claims as a form of sex discrimination. Judge Daniels ruled on September 29, 2016, and Frederick Cargian filed an appeal to the 2nd Circuit. When the Christiansen decision was issued on March 27, it became clear that Cargian’s appeal to a three-judge panel would be a waste of time and judicial resources, and the American Civil Liberties Union, representing Cargian along with the New York Civil Liberties Union and solo plaintiffs’ attorney Janice Goodman, decided to petition the Circuit to take the case up directly en banc.
The second petition was filed on April 28 by Matthew Christiansen’s attorney, Susan Chana Lask. The three-judge panel in Christiansen’s case had refused to allow the case to continue on a sexual orientation discrimination theory, but had concluded that it was possible that Christiansen would be able to proceed under a gender stereotype theory. The panel clarified the 2nd Circuit’s approach in such cases, rejecting the trial judge’s conclusion that if the factual allegations suggest that sexual orientation played a role in the discrimination suffered by the plaintiff, he would be not be allowed to proceed under Title VII. The trial court’s approach overlooked an important element of Title VII, an amendment adopted in 1991 providing that a plaintiff is entitled to judgment if sex is a “motivating factor” in his or her case, even if other factors contributed to the employer’s discriminatory conduct. The Supreme Court ruled in 1989 that discriminating against an employee because the employee fails to conform to gender stereotypes is evidence of discrimination because of sex. In such a case, the sexual orientation of the plaintiff would be irrelevant, so long as the plaintiff could show that gender stereotyping was a motivating factor in their mistreatment.
At first it appeared that Christiansen would not seek en banc review, despite Judge Katzmann’s concurring opinion, as the panel unanimously voted to send the case back to the district court for consideration as a gender stereotyping case. Attorney Lask was quoted in newspaper reports as preparing to proceed to trial on the stereotyping theory. The ACLU’s en banc petition changed the game plan, evidently, and Christiansen’s en banc petition was filed on April 28.
Meanwhile, on April 18, a different panel of the 2nd Circuit decided Zarda v. Altitude Express, once again holding that a gay plaintiff could not advance a sexual orientation discrimination claim under Title VII. Gregory Antollino, an attorney for an executor of the Estate of Donald Zarda, a gay skydiving instructor who had died in a skydiving accident after the being discharged from his employment, filed a petition for en banc rehearing on May 2, with Stephen Bergstein of Bergstein & Ullrich as co-counsel representing a co-executor.
The very next day Judge Hellerstein issued his ruling, allowing Jeffrey Philpott, the gay former Vice President of Student Affairs at the State University of New York’s College of Optometry to pursue his Title VII sexual orientation discrimination, hostile environment and retaliation claims. Judge Hellerstein rejected the defendant’s alternative argument that even if sexual orientation discrimination is covered by Title VII, Philpott’s factual allegations were insufficient to support his claims. However, Judge Hellerstein joined with several other district judges within the 2nd Circuit in ruling that an employee of an educational institution may not bring an employment discrimination claim under Title IX of the Education Amendments of 1992, which bans sex discrimination by educational institutions that receive federal money. Although the plain language of Title IX can be interpreted to cover employment discrimination claims, Hellerstein agreed with other courts that have found that Congress did not intend to supplant Title VII, with its specific time deadlines and administrative exhaustion requirements, for employees of educational institutions who have sex discrimination claims.
After briefly describing the 2nd Circuit precedents, Hellerstein noted defendant’s argument that the court must dismiss the sexual orientation claims, and also Philpott’s request for leave to file an amended complaint focused on gender stereotyping. “Neither relief is appropriate,” wrote the judge. “The law with respect to this legal question is clearly in a state of flux, and the Second Circuit, or perhaps the Supreme Court, may return to this question soon. In light of the evolving state of the law, dismissal of plaintiff’s Title VII claim is improper.”
Hellerstein then provided a summary of Judge Katzmann’s Christiansen concurrence, which he referred to more than once as a “majority concurrence” as it was signed by two of the three panel members. Hellerstein pointed to the 7th Circuit Court of Appeals en banc decision in Hively v. Ivy Tech Community College, issued on April 4, in which “the Seventh Circuit became the first Court of Appeals to unequivocally hold that ‘discrimination on the basis of sexual orientation is a form of sex discrimination’ and therefore cognizable under Title VII.”
“Among other reasons,” wrote Hellerstein, “the Seventh Circuit made this ruling ‘to bring our law into conformity with the Supreme Court’s teachings.’ The Seventh Circuit was also compelled by ‘the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without also discriminating on the basis of sex.’”
Hellerstein asserted that because Philpott “has stated a claim for sexual orientation discrimination, ‘common sense’ dictates that he has also stated a claim for gender stereotyping discrimination, which is cognizable under Title VII. The fact that plaintiff has framed his complaint in terms of sexual orientation discrimination and not gender stereotyping discrimination is immaterial. I decline to embrace an ‘illogical’ and artificial distinction between gender stereotyping discrimination and sexual orientation discrimination, and in so doing, I join several other courts throughout the country.”
A few days after Hellerstein’s ruling, another panel of the 2nd Circuit avoided dealing with the same question in Magnusson v. County of Suffolk, an appeal from a May 2016 ruling by District Judge Sandra Feuerstein in the Eastern District of New York (Long Island). Judge Feuerstein had rejected Arline Magnussen’s sexual orientation harassment Title VII claim on alternative grounds: that 2nd Circuit precedent does not allow sexual orientation claims, and that the employer could not be held liable under Title VII because Magnussen had unreasonably failed to invoke the employer’s internal grievance procedure to deal with her harassment complaint. In a short memorandum signed by the Clerk of the Court, the 2nd Circuit ruled on May 11 that it need not address the Title VII interpretation issue in light of the district court’s finding that the employer could not held liable for whatever harassment the plaintiff might have suffered.
In terms of en banc review, in both Cargian and Zarda the court would face a case where the only stereotyping claim that would be viable would be that as gay men the plaintiffs did not conform to the stereotype that men should be attracted to women, so it would have to deal directly with the question whether sexual orientation is, as the EEOC stated and the 7th Circuit accepted, “necessarily” sex discrimination. In Christiansen, the appellate panel found that the plaintiff might invoke other gender stereotype issues to make a viable claim under Title VII under the Circuit’s existing precedents, thus providing a less certain vehicle for getting the Circuit to confront the central legal issue.
If the 2nd Circuit grants the Christiansen or Cargian petitions, the en banc panel would consist of the eleven active members of the court. If it grants the Zarda petition, those judges could be joined by two senior judges, Robert Sack and Gerard Lynch, who sat on the three-judge panel. Of the eleven active judges, a majority were appointed by Democratic presidents: three by Clinton and four by Obama. If the senior judges are added, a thirteen-member panel would include four appointed by Clinton and five appointed by Obama. It is not clear from the Circuit’s published rules whether the senior judges could participate if the Circuit decides to consolidate the cases for rehearing en banc, but it is possible that they could only participate in deciding the Zarda case.
Last July the Equal Employment Opportunity Commission (EEOC), reversing its position dating back fifty years, issued a ruling that a gay man could charge a federal agency employer with sex discrimination in violation of Title VII of the Civil Rights Act of 1964 for denying a promotion because of his sexual orientation. The Baldwin v. Foxx decision is an administrative ruling, not binding on federal courts, and federal trial judges are sharply divided on the issue.
During May and June, federal district judges in Virginia, New York, Illinois, Mississippi and Florida issued rulings in response to employers’ motions to dismiss Title VII claims of sexual orientation discrimination. In each case, the employer argued that the plaintiff’s Title VII claim had to be dismissed as a matter of law because the federal employment discrimination statute does not forbid sexual orientation discrimination.
Title VII was enacted as part of the Civil Rights Act of 1964. Although the House committee considering the bill took evidence about sex discrimination, it decided to send the bill to the House floor without including “sex” as a prohibited basis for discrimination, because this was deemed too controversial and might sink the bill. During the floor debate, however, a southern representative, Howard Smith of Virginia, a conservative Democrat who was opposed to the proposed ban on race discrimination, proposed an amendment to add “sex” to the list of prohibited grounds. Most historical accounts suggest that Smith’s strategy was to make the bill more controversial, thus ensuring its defeat. More recent accounts have suggested that Smith, although a racist, was actually a supporter of equal rights for women and genuinely believed that sex discrimination in the workplace should be banned. (His amendment did not add “sex” to the other titles of the bill addressing other kinds of discrimination.) The amendment passed, and ultimately the bill was enacted, going into effect in July 1965.
Because “sex” was added through a House floor amendment, the Committee Report on the bill says nothing about it, and the subsequent debate in the Senate (where the bill went directly to the floor, bypassing committee consideration) devoted little attention to it, apart from an amendment providing that pay practices “authorized” by the Equal Pay Act of 1963 would not be outlawed by Title VII. As a result, the “legislative history” of Title VII provides no explanation about what Congress intended by including “sex” as a prohibited ground of discrimination.
During the first quarter century of Title VII, the EEOC and the federal courts consistently rejected claims that the law outlawed sexual orientation discrimination. In the absence of explanatory legislative history, they ruled that Congress must have intended simply to prohibit discrimination against women because they are women or against men because they are men, and nothing more complicated or nuanced than that. This interpretation was challenged in 1989, when the Supreme Court ruled in Price Waterhouse v. Hopkins that a woman who failed to conform to her employer’s sex stereotypes could bring a sex discrimination case under Title VII, adopting a broader and more sophisticated view of sex discrimination.
Since 1989, some lower federal courts have used the Price Waterhouse ruling to allow gay or transgender plaintiffs to assert sex discrimination claims in reliance on the sex stereotype theory, while others have rejected attempt to “bootstrap” sexual orientation or gender identity into Title VII in this way. More recently, several federal appeals courts have endorsed the idea that gender identity discrimination claims are really sex discrimination claims, and a consensus to that effect has begun to emerge, but progress has been slower on the sexual orientation front.
Last summer the EEOC’s decision in Baldwin v. Foxx presented a startling turnabout of the agency’s view. The EEOC does not adjudicate discrimination claims against non-governmental and state employers, but it is assigned an appellate role concerning discrimination claims by federal employees. In Baldwin v. Foxx, the EEOC reversed a ruling by the Transportation Department that a gay air traffic controller could not bring a sexual orientation discrimination claim under Title VII. Looking at the developing federal case law since Price Waterhouse and seizing upon a handful of federal district court decisions that had allowed gay plaintiffs to bring sex discrimination claims under a sex stereotype theory, the agency concluded that a sexual orientation discrimination claim is “necessarily” a sex discrimination claim and should be allowed under Title VII.
Since that July 15 ruling, many federal district judges have had to rule on motions by employers to dismiss Title VII sexual orientation discrimination claims. The precedential hierarchy of the federal court system has required some of them to dismiss those claims because the circuit court of appeals to which their rulings could be appealed had previously ruled adversely on the issue. In other circuits, however, the question is open and some judges have taken the EEOC’s lead.
On May 5, U.S. District Judge Robert E. Payne in Virginia found that he was bound by 4th Circuit precedent to reject a sexual orientation discrimination claim under Title VII, even though the plaintiff, an openly-gay administrative assistant at Virginia Union University, had alleged clear evidence of anti-gay discrimination by the university president. Judge Payne found that a 1996 decision by the 4th Circuit, Wrightson v. Pizza Hut of America, was still binding. Payne noted that other federal trial courts were divided about whether to defer to the EEOC’s Baldwin ruling, but in any event he felt bound by circuit precedent to dismiss the claim.
A district judge on Long Island, Sandra J. Feuerstein, reached a similar result in Magnusson v. County of Suffolk on May 17, dismissing a Title VII claim by an openly-lesbian custodial worker at the Suffolk County Department of Public Works, who alleged that her failure to comply with her supervisors’ stereotypes of how women should dress had led to discrimination against her. Relying on prior decisions by the New York City-based 2nd Circuit Court of Appeals, Judge Feuerstein refrained from discussing more recent developments and dismissed the claim, asserting that the plaintiff’s “claims regarding incidents of harassment based on her sexual orientation do not give rise to Title VII liability.”
However, on May 31, a senior district judge in Illinois decided that prudence in light of the developing situation counseled against dismissing a pending “perceived sexual orientation” claim in the case of Matavka v. Board of Education. Judge Milton I. Shadur confronted the school district’s motion to dismiss a discrimination claim by an employee at J. Sterling Morton High School, who alleged that “he experienced severe harassment from his coworkers and supervisors, including taunts that he was ‘gay’ and should ‘suck it,’ frequent jokes about his perceived homosexuality, and hacking of his Facebook account to identify him publicly as ‘interested in boys and men’, and an email stating ‘U. . . are homosexual.’” Judge Shadur observed that the Chicago-based 7th Circuit Court of Appeals had in the past rejected sexual orientation discrimination claims under Title VII, which “would appear to bury” Matavka’s Title VII claim. But, he noted, Baldwin v. Foxx, while not binding on the court, may prompt a rethinking of this issue, and that the 7th Circuit heard oral argument on September 30 of a plaintiff’s appeal from a different federal trial judge’s dismissal of a sexual orientation discrimination claim in the case of Hively v. Ivy Tech Community College. “Should Hively follow recent district court decisions in finding Baldwin persuasive,” he wrote, “that finding plainly would affect the disposition of Morton High’s motion. That being so, the prudent course at present is to stay this matter pending the issuance of a decision in Hively.”
The 7th Circuit has not issued a decision in Hively as of this writing. Judge Shadur stayed a ruling on the motion until July 29, and said that if the 7th Circuit had not issued a ruling by then, he might stay it further.
The federal appeals courts are not bound by any rules about how soon after oral argument they must issue opinions. Sometimes the 7th Circuit moves quickly. During 2014 it took just a week after the August 26 oral argument to rule affirmatively on a marriage equality case on September 4, giving the states of Wisconsin and Indiana time to petition the Supreme Court for review before the start of the Court’s October term. The panel that heard the Hively argument has not ruled in more than eight months, suggesting that an extended internal discussion may be happening among the nine active judges of the 7th Circuit, to whom the panel’s proposed opinion would be circulated before it is released. Panels may not depart from circuit precedent, but a majority of the active judges on the circuit can overrule their past decisions. A 7th Circuit ruling reversing the district court’s dismissal of the Hively complaint would be a major breakthrough for Title VII coverage of sexual orientation claims.
Meanwhile, two decisions issued in June have taken opposite views on the question. In Brown v. Subway Sandwich Shop of Laurel, U.S. District Judge Keith Starrett of the Southern District of Mississippi bowed to prior 5th Circuit rulings rejecting sexual orientation claims under Title VII, and he even claimed, somewhat disingenuously, that the EEOC’s Baldwin decision did not support the plaintiff’s claim, stating that Baldwin “takes no position on the merits of the claim and resolves only timeliness and jurisdictional issues.” While this may appear to be technically true, since the EEOC was ruling on an appeal from the Transportation Department’s dismissal of the claim and not ultimately on the merits, on the other hand the EEOC definitely did take a “position” on the question whether sexual orientation discrimination claims are covered by Title VII; it had to address this question in order to determine that it had jurisdiction over the claim. The EEOC clearly stated in Baldwin that sexual orientation discrimination claims are “necessarily” sex discrimination claims.
By contrast, U.S. District Judge Mark E. Walker of the Northern District of Florida, finding that the 11th Circuit Court of Appeals has not issued a precedential ruling on the question, refused to dismiss a “perceived sexual orientation” discrimination claim in Winstead v. Lafayette County Board of County Commissioners on June 20. Pointing out that the 11th Circuit had ruled in 2011 in Glenn v. Brumby that a gender identity discrimination claim could be considered a sex discrimination claim under the Equal Protection Clause using a sex stereotyping theory, Judge Walker found that the Baldwin ruling, which also discussed sex stereotyping as a basis for a sexual orientation claim, was persuasive and should be followed.
Judge Walker rejected the argument made by some courts that using the stereotyping theory for this purpose was inappropriately “bootstrapping” claims of sexual orientation discrimination under Title VII. “These arguments seem to this Court to misapprehend the nature of animus towards people based on their sexual orientation, actual or perceived,” he wrote. “Such animus, whatever its origin, is at its core based on disapproval of certain behaviors (real or assumed) and tendencies towards behaviors, and those behaviors are disapproved of precisely because they are deemed to be ‘inappropriate’ for members of a certain sex or gender.”
He concluded: “This view – that discrimination on the basis of sexual orientation is necessarily discrimination based on gender or sex stereotypes, and is therefore sex discrimination – is persuasive to this Court, as it has been to numerous other courts and the EEOC.” He also contended that it “follows naturally from (though it is not compelled by) Brumby, which is binding Eleventh Circuit precedent. Simply put, to treat someone differently based on her attraction to women is necessary to treat that person differently because of her failure to conform to gender or sex stereotypes, which is, in turn, necessarily discrimination on the basis of sex.”
Ironically, Judge Walker turned to an opinion written by the late Justice Antonin Scalia, an outspoken opponent of LGBT rights, to seal the deal. He quoted from Scalia’s opinion for the Supreme Court in Oncale v. Sundowner Offshore Services, a 1998 decision that same-sex harassment cases could be brought under Title VII. “No one doubts,” wrote Judge Walker, “that discrimination against people based on their sexual orientation was not ‘the principal evil Congress was concerned with when it enacted Title VII,’” quoting Scalia, and continuing the quote, “’But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.’” Scalia was opposed to relying on “legislative history” to determine the meaning of statutes, instead insisting on focusing on the statutory language and giving words their “usual” meanings.
Judge Walker concluded that his decision not to dismiss the Title VII claim “does not require judicial activism or tortured statutory construction. It requires close attention to the text of Title VII, common sense, and an understanding that ‘in forbidding employers to discrimination against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes,’” a quote from a 1971 court of appeals ruling that had been cited by the Supreme Court.
Judge Walker’s decision provides the most extended district court discussion of the merits of allowing sexual orientation discrimination claims under Title VII, but it will not be the last word, as the EEOC pushes forward with its affirmative agenda to litigate this issue in as many federal courts around the country as possible, building to a potential Supreme Court ruling. So far, the Supreme Court has refused to get involved with the ongoing debate about whether sexual orientation or gender identity discrimination claims are covered under Title VII. It refused to review the 11th Circuit’s decision in Glenn v. Brumby. But it can’t put things off much longer. An affirmative 7th Circuit ruling in Hively would create the kind of “circuit split” that usually prompts the Supreme Court to agree to review a case. That may not be long in coming.
I was invited by Rabbi Sharon Kleinbaum to give a talk at Friday night services at Congregation Beit Simchat Torah on June 3 about the current status of transgender rights in the U.S. CBST observes Gay Pride Month with a series of guest speakers on Friday nights, and the first Friday of the month was designated as “Trans Pride Shabbat” this year. Below is a revised version of the text I prepared for that talk, although on Friday night I left this text in my folder and spoke extemporaneously.
This month we mark the anniversary of a major victory for transgender rights in the U.S. which has generally been overlooked. There was much celebration last June 26 when the Supreme Court ruled in Obergefell v. Hodges that same-sex couples were entitled to marry and to have our marriages recognized by state and local governments under the 14th Amendment . What few mentioned in those celebrations was that this decision implicitly overruled some terrible state court rulings from around the country holding that marriages involving transgender people were invalid under the state bans on same-sex marriage. By removing any gender requirements for marriage, the Supreme Court was not only opening up marriage nationwide for same-sex couples, it was also making it possible for transgender people to marry the partners they love regardless of their sex, sexual orientation, or gender identity. This would also cancel out any argument that a married person who was transitioning was no longer validly married or should be required to divorce their spouse. However, since every state now has no-fault divorce, of course if such a transition takes place and the couple decides to end their marriage, there would be no impediment under state law to their doing so.
Let’s consider the current legislative status of transgender rights protections in the U.S. As of today, 17 states expressly prohibit discrimination based on gender identity in employment, housing and public accommodations (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, as well as the District of Columbia and Puerto Rico). Massachusetts prohibits gender identity discrimination in employment and housing, and the legislature is working on adding public accommodations, with the likely approval of the governor. Most of these laws have specific exemptions for religious institutions, and some of the states also have Religious Freedom statutes that might be interpreted to provide exemptions for businesses whose owners have religious objections, but the question of such exemptions for businesses is not really settled and heavily argued.
Three states prohibit sexual orientation discrimination by statute but not yet gender identity discrimination: New Hampshire, New York and Wisconsin. In New York, however, the State Division of Human Rights earlier this year published a regulation stating that it interprets the New York Human Rights Law ban on sex discrimination to include discrimination because of gender identity, and the ban on disability discrimination to cover gender dysphoria, thus providing protecting to individuals who have not yet finished transitioning to the gender with which they identify. That interpretation has not yet been tested in the courts, but it is consistent with some unfolding federal law developments and also some older decisions by New York trial courts.
In addition, many states have now included specific protection on the basis of gender identity under their Hate Crimes statutes, which authorize enhanced penalties against people who perpetrate violent crimes against people because of their transgender identity. Also, many cities, towns, villages and counties around the country have passed local laws banning gender identity discrimination. In states that lack such laws, many of the large cities have passed them, although there is a disturbing new trend in some of those states for the state legislatures to pass laws prohibiting localities from going beyond the provisions of the state civil rights laws. Lawsuits are challenging these limitations.
At the federal level, two statutes, the Matthew Shepard – James Byrd Jr. Hate Crime Prevention Act and the Violence against Women Act, provide for enhanced penalties for those who commit crimes of physical violence against people because of their gender identity, but only when there is some connection to interstate activity. The interstate activity requirement relates to Congress’s limited power to pass criminal statutes because Article I of the Constitution does not list criminal laws, so federal criminal statues are normally based on Congress’s power to regulate commerce between the states or to enforce other provisions of the Constitution. In states that do not provide gender identity protection under their hate crimes laws, state prosecutors can refer cases to the US Justice Department, which may prosecute after determining that the crime implicates interstate commerce. For example, if the weapon used to commit the crime had moved across state lines, or if the crime (such as kidnaping) involved transportation on an interstate highway, the federal Hate Crimes law could come into play.
Congress has not yet approved the Equality Act, which was introduced last year to amend all federal civil rights statutes to list gender identity and sexual orientation as prohibited grounds of discrimination. This would provide protection in the areas of employment, housing, public accommodations, credit, educational institutions, and all programs that receive federal financial assistance or are operated by federal contractors, and would also cover state government employment and federal employment. The bill enjoys wide co-sponsorship among Democratic members of both houses, but has only a handful of Republican co-sponsors, and the Republican leadership in both houses has denied committee hearings or votes on the bill, so it cannot be passed unless there is a significant change in the political balance of Congress or in the views of the Republican Party.
The Obama Administration adopted executive orders last year that prohibit federal executive branch agencies and federal contractors from discriminating in employment or provision of services because of gender identity or sexual orientation. These orders are enforced administratively within the executive agencies, not in federal courts. However, there has been recent activity in Congress placing the federal contractor protections into question. An impasse between Republicans and Democrats has led to a stalemate over adoption of important pending spending bills and has generated substantial debate on the floor of the House of Representatives, because there are enough Republicans who will vote in favor of this protection (which essentially incorporates the terms of the President’s executive order into legislation) to add it to the pending bills as amendments, but then not enough votes from the Republican majority in the House to pass the resulting amended bills, which are generally opposed by the Democrats because they provide insufficient funding for federal agencies or place objectionable restrictions on the agencies’ actions. This curious situation has brought the legislative authorization process to a temporary halt, and looms as a potential crisis as we move through this hotly contested congressional election cycle.
There are areas where there is much contention now in legislatures and the courts over transgender discrimination claims asserted under existing sex discrimination laws. Is it possible that gender identity discrimination is already illegal, even when it is not mentioned as a prohibited ground of discrimination? This is the hot issue of the day that may reach the Supreme Court next term.
In 1964, Congress considered a Civil Rights Act that was mainly intended to ban race and religious discrimination in employment and public services. However, the employment provision, Title VII, was amended in the House of Representatives to add “sex” as a prohibited ground of employment discrimination. The term “sex” was not defined in the statute, and historical accounts show that the amendment was introduced by a Conservative Virginia representative, possibly as part of a strategy to keep the bill from being passed. When Title VII went into effect in July 1965, some attempts were made to bring discrimination claims on behalf of gay and transgender people, but they were rejected by the Equal Employment Opportunity Commission (EEOC), the agency in charge of enforcement of Title VII, and in early decisions by the federal courts.
In 1972, Congress enacted Title IX of the Education Amendments Act, which forbids sex discrimination by educational institutions that receive federal funding. The U.S. Department of Education and courts interpreting Title IX have generally followed the interpretation of “sex” under Title VII. In early cases they refused to use this statute to protect gay and transgender people from discrimination. Other federal statutes addressing sex discrimination, including the Fair Housing Act and the Equal Credit Opportunity Act, also received narrow interpretations of their sex discrimination provisions.
In 1990, Congress passed the Americans with Disabilities Act. Some opponents of that bill complained that it might be hijacked by sexual minorities claiming that homosexuality or transsexuality could be deemed disabilities. Republican Senator Jesse Helms from North Carolina obtained an amendment specifically stating that homosexuality and “transsexualism” would not be considered disabilities for purposes of protection under this statute.
Interpretation of federal sex discrimination laws began to change after 1989, when the Supreme Court decided an important Title VII case, Price Waterhouse v. Hopkins. Ann Hopkins was denied a partnership at a national accounting firm because some of the partners thought she was not adequately feminine in her appearance and conduct. One said she needed “a course in charm school,” and the head of her office told her she should wear make-up and jewelry and walk, talk and dress more femininely if she wanted to be a partner. The Supreme Court said that this kind of sexual stereotype was evidence of a discriminatory motive under Title VII, and stated that Congress intended to knock down all such barriers to advancement of women in the workplace, signaling a broad interpretation of sex discrimination.
Over the following two decades, lower federal courts have used the Price Waterhouse decision to adopt a broader interpretation of “sex” under Title VII and other federal sex discrimination provisions. By early in this century federal appeals courts started to extend protection to transgender plaintiffs on the theory that they were suffering discrimination because they failed to conform to sex stereotypes. Federal circuit and district courts in many different parts of the country have now found gender identity protection in cases under the Violence against Women Act, the Equal Credit Opportunity Act, and Title VII of the Civil Rights Act. In an important breakthrough, the Atlanta-based U.S. Court of Appeals for the 11th Circuit ruled that discrimination against a transgender state employee violated the Equal Protection Clause of the 14th Amendment, finding that the same standard used for sex discrimination claims should be applied to gender identity claims.
One of the key factors advancing this broad interpretation of sex discrimination was President Obama’s appointment of Chai Feldblum, then a law professor at Georgetown University, to be a commissioner at the EEOC during his first term. (She is now serving a second term at the EEOC.) Commissioner Feldblum, the first openly lesbian or gay EEOC commissioner, argued effectively that the agency should adopt a broad interpretation of “sex” and apply it to discrimination claims by federal employees. In three important rulings over the last few years, the EEOC held first that gender identity discrimination claims may be brought under Title VII, then that sexual orientation discrimination claims could also be brought under Title VII, and late last year that Title VII requirs federal agencies to allow transgender employees to use workplace restrooms consistent with their gender identity. Building on these rulings as well as the growing body of federal court rulings, the Justice Department, the Department of Education, and other federal agencies with civil rights enforcement responsibility, have also begun to interpret their statutory sex discrimination laws more broadly.
The EEOC was ruling on internal discrimination claims within the federal government, but the agency has also undertaken an affirmative litigation strategy, filing briefs in cases pending in federal court brought by private litigants against non-governmental employers. In addition, the EEOC has filed its own gender identity and sexual orientation discrimination lawsuits in federal courts on behalf of individuals who filed charges against employers with that agency.
The Department of Education and the Justice Department have become involved in several cases brought by transgender high school students under Title IX, seeking access to restrooms consistent with their gender identity.
In a case that drew national attention last year, the Education and Justice Departments represented a transgender high school student in Illinois who was denied appropriate bathroom access and negotiated a settlement with the school district affirming the student’s rights. That attracted a federal court lawsuit against the government by Alliance Defending Freedom, a right-wing litigation group representing some objecting parents and students. The lawsuit claims that Title IX does not apply to this situation and that their children’s “fundamental right of bodily privacy” was violated by the terms of the settlement. It also claims that the Education and Justice Departments did not have authority to adopt this new interpretation of the law without proposing a formal regulation under the procedures established by the Administrative Procedure Act, which include a right of any interested member of the public to challenge a new regulation directly in the federal appeals courts.
This issue burst into wider public discussion when the city of Charlotte, North Carolina, passed an ordinance forbidding sexual orientation and gender identity discrimination, and made clear that transgender people in Charlotte would be allowed to use public and workplace restrooms consistent with their gender identity. The ordinance was set to take effect on April 1, 2016. This stirred up a storm in the North Carolina legislature, which held a special session late in March to pass H.B. 2, a measure that preempted local anti-discrimination laws and provided that in government-operated buildings the restrooms would be strictly segregated by biological sex, meaning, for example, that a person can’t use a women’s restroom unless their birth certificate indicates that they are female. This would apply to public colleges, universities and schools at all levels and in all other government buildings.
The main focus of debate was Republican legislators’ argument that allowing transgender women to use women’s restrooms would present a danger to women and children of possible sexual assault by heterosexual men declaring themselves to be transgender in order to gain improper access. The argument is patently ridiculous. Seventeen states prohibit gender identity discrimination in public facilities, as do several hundred local jurisdictions, but there are no reports that these laws have enabled male sexual predators to gain access to women’s restrooms, and existing criminal laws against public lewdness and sexual assault can easily be used to prosecute such individuals. In a alternative argument, the opponents of transgender restroom access are now pushing the theory argued in the new Illinois lawsuit: that allowing transgender people into restrooms consistent with their gender identity threatens the “right of bodily privacy” of other users to avoid exposing themselves to the view of transgender people. Those making this argument reject the proposition that a transgender woman is genuinely a woman and a transgender man is genuinely a man, and argue that there is a tradition of sheltering people in restrooms from the gaze of members of the opposite sex.
A similar rejection of the reality of transgender identity can be found in a law recently passed by the state of Mississippi, which specifically authorizes people whose religious belief rejects transgender identity to refuse to treat transgender people consistent with their gender identity, including in places of business when it comes to things like restroom access. This reverts back to the views that used to be expressed by courts during the 20th century, rejecting the idea of gender transition and insisting that gender must be defined solely by a determination made at someone’s birth and entered on their birth certificate.
North Carolina’s H.B. 2 and the Mississippi law are now both the subject of multiple federal law suits disputing the bodily privacy argument and forcing courts to confront the question whether discrimination against transgender people violates the 14th Amendment of the Constitution, Title IX and Title VII. While this dispute was pending, the Obama Administration threatened North Carolina with enforcement action under Title VII and Title IX, and distributed a letter in May to educational administrators nationwide advising them of the requirement to respect the rights of transgender students and staff under Title IX. The administration’s action attracted new lawsuits, including one filed by the State of Texas on behalf of itself and a dozen other states challenging the administration’s interpretation of Title IX.
Meanwhile, during April the Richmond-based U.S. Court of Appeals for the 4th Circuit, ruling in a high school restroom case brought by a transgender boy under Title IX, held that the federal district court should defer to the Education Department’s interpretation of that statute, reversed the district court’s dismissal order, and sent the case back to the district court for further proceedings. At the end of May, the full bench of the 4th Circuit rejected the School District’s petition for reconsideration of the case, and on June 7 the school district filed a notice with the 4th Circuit that it plans to petition the U.S. Supreme Court to review the decision. This will probably result in a “stay” of the 4th Circuit’s ruling, which will delay further consideration by the district court of the plaintiff’s request for a preliminary injunction so that he can access the boys’ restroom facilities at his high school when classes resume in the fall.
Although legal commentators have suggested that it is unlikely the Supreme Court will agree to hear this case, it is at least possible. The notice the School Board filed focuses on two arguments: that the district court should not defer to the Education Department’s interpretation of Title IX, and that giving transgender students the restroom access they desire violates the “bodily privacy rights” of other students. The first argument would require the Supreme Court to overrule a precedent that has been strongly criticized by the Court’s most conservative justices. The second would require the Court to broaden the right of privacy under the Due Process Clause to encompass a right not to share restroom facilities with transgender people.
We should begin to see decisions in many of the pending lawsuits in the months ahead. One of the complications facing us now in getting a resolution to this controversy is that the Supreme Court is operating with only 8 members since the death of Justice Scalia in February. Senate Republicans have refused to hold hearings and vote on President Obama’s nominee for the seat, Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit. This vacancy may lead the Supreme Court to avoid taking for review controversial cases as to which it is likely to be sharply divided, such as the case from Virginia involving the transgender student’s discrimination claim under Title IX. The court of appeals decision in that case was 2-1. The dissenting judge urged the school district to seek review from the Supreme Court. Although there might be some delays in getting this issue to the Supreme, it appears likely that the next big LGBT rights case to go to that Court will focus on whether gender identity discrimination is a form of “sex” discrimination that can be challenged under existing sex discrimination statutes and the Equal Protection Clause of the 14th Amendment.