On Tuesday, the U.S. Supreme Court will consider whether the protections under Title VII of the Civil Rights Act of 1964, which among other things prohibit discrimination on the basis of “sex,” extend to gay and transgender workers.
From the Washington Post:
The court combined two cases to consider whether gay workers are covered. Gerald Bostock claims he was fired from his job as a social worker in Clayton County, Ga., after he became more open about being gay, including joining a gay softball league. Donald Zarda said he was fired as skydiving instructor after joking with a female client to whom he was strapped for a tandem dive that he was gay. (Zarda died in 2014.)
The transgender case involves Aimee Stephens, who worked for years at a Michigan funeral home before being fired after informing the owners and colleagues of her gender transition.
As the Post explains, the law has previously been interpreted to mean that women could not be treated worse than men and vice versa, but it did not provide protections for LGBTQ against discrimination. The Trump administration does not believe that type of protection should be put in place.
Solicitor General Noel J. Francisco wrote in a brief to the court in the Bostock and Zarda cases, “The ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation.” Francisco contends that employers only violate Title VII when they treat members of one sex “worse than similarly situated members of the other sex. Discrimination on the basis of sexual orientation, standing alone, does not satisfy that standard.”
This is in direct opposition to a decision made by the Equal Employment Opportunity Commission (EEOC) in 2015 which said that gay and transgender employees are federally protected.
The EEOC believes that treating a man who is attracted to men differently than a woman who is attracted to men is discrimination.
The commission also looked at a 1989 Supreme Court decision that said federal law protected against discrimination based on stereotypes; the court found for a woman who had not been promoted because her employers found her too aggressive, and her manner of dress not feminine enough.
That is analogous to discriminating against a transgender individual, the commission said. And discrimination because of sexual orientation is the same thing, the EEOC said, because it relies on stereotypes about to whom men and women should be attracted.
In more than half of the 50 states, there are no protections for gay and transgender workers, according to gay rights leaders cited by the Post, and in the states that do have protections, the prohibitions are lopsided, with some only protecting gender identity and transgender status, and others differentiating between public and private employment.