On Monday, the U.S. Supreme Court agreed to hear three cases, which, once resolved, could expand workplace rights for gay and transgender Americans. Or not. Either way, the outcome of these cases will give the nation its first real look at how a post-Anthony Kennedy court, with conservative Associate Justice Brett Kavanaugh in his place, will address issues related to people who identify as LGBTQ.
Angela Morrison is an associate professor of law at Texas A&M University School of Law, and an expert in employment discrimination law. She says the cases the court has agreed to hear relate to men who say they were fired by an employer because they are gay. Lower courts ruled differently in two of the cases, setting up a conflict for the Supreme Court to resolve.
“In both of those, the question that the court’s going to be considering is whether the term ‘because of sex’ in Title VII includes sexual orientation,” Morrison says.
The federal Equal Employment Opportunity Commission ruled in 2015 that sexual orientation should be protected under Title VII. But its perspective changed when when Donald Trump assumed office.
“In 2017, the Trump Department of Justice said that sexual orientation was not covered under Title VII, as well as gender identity,” Morrison says.
The conflict over whether sexual orientation discrimination is prohibited by Title VII turns on the definition of the word “sex” in the law.
“The idea is that you can’t identify someone’s sexual orientation without talking about both the person’s sex and the sex that the person’s attracted to,” Morrison says. “So discriminating on that basis is because of sex.”
Also, Morrison says advocates of protecting transgender people under Title VII argue that the law should prohibit discrimination on the basis of sexual stereotypes.
Written by Shelly Brisbin.