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Background: Where We Stand in the Courts

Under federal law, Americans in every state are fully protected from sex-based discrimination in employment, housing, and education – and for decades, legal scholars and advocates have been making the case that these protections from discrimination based on sex also extend to discrimination based on sexual orientation and gender identity. After all, targeting someone because they love a person of the same sex or because they transitioned genders is inherently discriminating against them because of their sex.

In recent years, legal consensus has grown, with judges, courts, and federal agencies increasingly coming to the conclusion that federal law prohibits discrimination against LGBTQ people. Legal advocates are aiming toward a clear goal – that the U.S. Supreme Court find that “sex discrimination” encompasses discrimination based on sexual orientation and gender identity. This vital work in the courts, alongside the work of advocates charging toward change in state legislative chambers and in the United States Congress, will converge and build momentum toward federal non-discrimination laws ensuring that all Americans are explicitly protected from discrimination based on sexual orientation and gender identity or expression.

Sex Discrimination at the U.S. Supreme Court

The United States Supreme Court has not yet considered the question of whether federal law prohibits anti-LGBTQ discrimination. However, two important U.S. Supreme Court cases have dramatically impacted the legal landscape when it comes to discrimination against LGBTQ people:

  • In Price Waterhouse v. Hopkins, decided May 1, 1989, the U.S. Supreme Court found that sex discrimination includes discrimination based on sex stereotyping, meaning whether a person is perceived to conform with expected gender stereotypes. Advocates have been able to successfully cite this ruling when discussing LGBTQ people who have experienced discrimination, with the logic that discrimination against an individual because of their attraction to a person of the same sex or their gender transition is motivated by the individual’s failure to conform to expected gender stereotypes (the stereotype that individuals are attracted to people of a different sex and forever present as the gender that matches their biological sex).
  • In Oncale v. Sundowner Offshore Services, Inc., decided March 4, 1998, the U.S. Supreme Court found that sexual harassment between members of the same sex is prohibited under Title VII of the Civil Rights Act. In the decision, Justice Antonin Scalia wrote that while Congress may not have written Title VII with the purpose of protecting same-sex sexual harassment, “statutory provisions 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.” This line and the Oncale decision in general have been cited by many judges and advocates who make the case that protections offered by Title VII can be newly expanded and interpreted as society evolves.

The EEOC Moves Workplace Protections Forward

Significantly, the Equal Employment Opportunity Commission (EEOC), a federal agency committed to enforcing civil rights laws focused on workplace discrimination, has determined that discrimination based on both sexual orientation and gender identity are prohibited under federal “sex discrimination” prohibitions.

On April 20, 2012 the EEOC ruled in Macy v. Holder that gender identity-based workplace discrimination violates Title VII, and on July 15, 2015 the EEOC ruled in Baldwin v. Foxx that the same is true for sexual orientation-based workplace discrimination. While only the U.S. Supreme Court can affirm this nationwide, the EEOC’s interpretations are typically given significant deference, and the determinations were groundbreaking and continue to impact cases.

Where Non-Discrimination Stands in the Federal Appellate Courts

Nearly all of the nation’s 13 federal appellate courts have considered whether sex discrimination amounts to discrimination based on LGBTQ identity – and in recent years several of these appellate courts have issued landmark decisions in favor of LGBTQ non-discrimination.

Two federal appellate courts – the 7th Circuit Court of Appeals and the 2nd Circuit – have concluded that federal law prohibiting sex discrimination also prohibits discrimination based on sexual orientation. The 7th Circuit ruled in April 2017 in Lambda Legal’s Hively v. Ivy Tech and the 2nd Circuit ruled in February 2018 in Zarda v. Altitude Express that Title VII of the Civil Rights Act protects people from employment discrimination based on sexual orientation.

Three federal appellate courts have explicitly ruled that federal laws prohibiting sex discrimination also prohibit discrimination based on gender identity or expression. The 6th Circuit and 11th Circuit have ruled in favor of transgender workers under Title VII, and the 7th Circuit has ruled that transgender students are protected under Title IX. Positive case law also exists in favor of transgender people in the 1st Circuit, 8th Circuit, and 9th Circuit.

In the rest of the appellate courts, anti-LGBTQ precedent – much of it established decades ago, before same-sex couples could even marry anywhere in the United States – stands in the way of justice for all. We expect many of these courts to revisit and overturn their outdated precedent, and ultimately, the U.S. Supreme Court must also recognize that LGBTQ people are protected from discrimination by federal law. With the weight of the nation’s highest court on the side of full LGBTQ equality, our lawmakers will feel the pressure to act and establish comprehensive non-discrimination protections for LGBTQ Americans, in all spheres of life, no matter where they live.

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