Constitution Daily

Smart conversation from the National Constitution Center

Major rulings on gay and transgender rights coming

April 22, 2019 by Lyle Denniston


Stepping into the midst of some of the nation’s most important civil rights controversies, the Supreme Court on Monday agreed to settle the meaning of a 1964 civil rights law that bans discrimination in the workplace based on sex – and, specifically, whether that law protects workers who are gay or lesbian, and those who are transgender.

Lower federal courts are split on whether that law, barring discrimination “because of sex,” applies only to bias between males and females in the traditional sense, or whether it sweeps more broadly and also protects against differing treatment on the job based on sexual orientation or transgender identity.

When the final decisions emerge next year in three new cases, the outcome is likely to be the most important on individual rights since the Supreme Court’s 2015 decision that, for the first time, gave constitutional protection to same-sex marriage. Because of the Court’s usual timetable, the final decisions would very likely emerge in the midst of next year’s presidential election campaign and add to any debate about civil rights.

While the three new cases deal directly only with the job-bias promise of the 1964 Civil Rights Act – that is, Title VII – it will almost certainly settle the same kind of question arising under another similarly-worded provision (Title IX) that protects against sex discrimination in programs that are partly funded by the federal government.

In addition, the outcome also could provide strong hints about how the current Supreme Court would view similar claims of gay and transgender discrimination under the equal-protection guarantees of the Fifth Amendment (affecting federal laws and programs) and the 14th Amendment (affecting state and local laws and public programs).

The Court has spent weeks examining the new cases that it agreed on Monday to review.  Hearings and final rulings are expected in the new Court term that opens early in October and continues through late June 2020.

These are the new cases the Court will be reviewing on how job-bias law applies to sexual orientation cases: one involves Gerald Lynn Bostock, who claimed he was fired from his job with a Georgia county’s juvenile justice system because he is gay; a federal appeals court ruled that he was not protected by Title VII; the other involves the estate that represents the late Donald Zarda, who claimed he was fired as a sky diver by a Long Island, New York, firm because he was gay; a federal appeals court ruled in favor of the estate’s claim of bias under Title VII.

The new transgender rights case involves an Ohio chain of funeral homes sued successfully by Aimee Stephens, who was hired at a time when she identified as a man (the gender assigned at birth) but later identified as a trangendered woman and sought to wear women’s clothing in her work. She was fired for violating the owners’ dress code. The owner claimed to be acting out of religious beliefs. A federal appeals court ruled for Stephens.

The funeral home case would lead to the Supreme Court’s first major ruling on the rights of transgender people – the latest turn in the nation’s ongoing revolution over civil rights and something of a sequel to the controversy over gay rights. Three years ago, the Justices had granted review of a Virginia high school student’s claim that he was denied access to the boys’ bathroom at school because he identified as a boy, after being assigned female gender at birth. That case ended at the Court, however, after the Trump Administration had entered office in early 2017 and changed its policy from what it had been in the Obama Administration. The case that involved Title IX because of its education focus, and not Title VII, is still unfolding in lower courts.

Although the Court has not yet agreed to rule on the issue of transgender people’s right to serve in the U.S. military, the Court did issue a temporary order allowing the Pentagon to put into effect earlier this month a sweeping new policy that significantly restricts continued service or enlistment by transgender individuals.

In agreeing to rule on the Ohio funeral home case on transgender rights under Title VII, the Court chose to re-word the questions it will be answering. One is whether that law prohibits discrimination based on transgender status, and the other is whether the law alternatively applies to gender “stereotyping” as spelled out in a ruling by the Court in 1989 involving more traditional claims of sex bias. (In this context, stereotyping does not mean treating people differently because of who they are as male or female, but whether they are discriminated against because of biased views of how they should act in terms of traditional male or female behavior.)

Since the 1964 civil rights law was first passed, the Supreme Court has issued a wide array of rulings dealing with both Titles VII and IX. Some of the Title VII rulings have dealt with cases involving gay or lesbian individuals, but the Court has never ruled directly on whether sexual orientation, as a status, is protected against discrimination in employment.

Courts have long had difficulty interpreting the phrase “because of sex” under federal civil rights law, because that phrase was added as the law was nearing passage, almost as an after-thought at the time, so there is very little history of what Congress believed at the time that it was outlawing.

For many years, courts routinely interpreted that phrase to only mean “sex” in the traditional male/female context. However, more recently, the U.S. Equal Employment Opportunity Commission began interpreting the phrase to mean protection also for gays, lesbians and transgenders, and that has led to courts beginning to do so, although the courts do remain divided on the question.

The 1989 decision that the Court will be examining anew when it considers the transgender case was Price Waterhouse v. Hopkins. It was one of the Court’s most important rulings on the scope of Title VII, and is still regarded as the main one on how to judge sex stereotyping. It involved a woman who was denied a partnership in a major accounting firm because, in her day-to-day conduct at work, she behaved in ways that her supervisors thought were unladylike.

That is considered a different form of bias compared to outright unfavorable treatment of an individual solely because that person is male or female. It is still illegal under federal law, even if different in degree.

The Court’s membership has changed completely since 1989. Justice Anthony M. Kennedy was the final member of the Court then to since leave the tribunal. He retired last year and was succeeded by the newest Justice, Brett M. Kavanaugh.

Justice Kennedy was the author of the modern Court’s most important rulings on gay rights, including the same-sex marriage decision in 2015. Justice Kavanaugh is generally considered to be more conservative than Kennedy on most issues; Kavanaugh now is part of a fairly solid five-Justice conservative majority.

Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.


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