SCOTUS To Consider Case On Employment Discrimination Based On Gender Identity

The Supreme Court is set to consider whether to take a case involving employment discrimination based on gender identity.

The Supreme Court is set to consider whether to accept an appeal in a case that could have a significant impact on the rights of transgender Americans in employment cases:

The fight over civil rights protections for transgender people could prove to be a major test for the Supreme Court, particularly its conservative wing, as justices weigh whether to take up the issue this term.

The court has a request before it to hear a case challenging whether civil rights laws that prohibit discrimination on the basis of sex in employment extend to transgender workers.

It’s a dispute that may have a significant impact on the Trump administration’s reported plans to exclude federal protections for transgender people by narrowly defining gender.

The New York Times reported last week that the Department of Health and Human Services (HHS) is leading an effort to write a rule that defines gender as a biological, immutable condition determined by genitalia at birth, a move that would affect civil rights laws banning gender discrimination in education programs that receive federal funding.

While the pending case before the justices deals with civil rights in the workplace, experts say a Supreme Court ruling could very well affect the administration’s planned gender rule.

“If the Supreme Court took it and held what the majority of courts are holding — that sex discrimination includes transgender people — the administration would be hard-pressed to go ahead with that rule,” said Diana Flynn, litigation director at Lambda Legal, a group that advocates for LGBT rights.

Several federal statutes prohibit sex discrimination in employment, education and health care, and legal analysts say each one has the same underlying language and concept.

“Courts tend very strongly to read them together,” said Harper Jean Tobin, director of policy at the National Center for Transgender Equality. “A ruling under one law would be very likely to impact other laws.”

The case pending before the Supreme Court centers on Aimee Stephens, a transgender woman who alleges she was fired from her job as a funeral director and embalmer after she told her employer she would begin living and working openly as a woman.

Ruling in her favor, the 6th Circuit Court of Appeals said discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII — the law that bans discrimination based on sex in employment.

The American Civil Liberties Union (ACLU), which is representing Stephens, says there’s no need for the Supreme Court to take the case because the majority of courts have issued rulings in line with the 6th Circuit.

“The Seventh, Ninth, and Eleventh Circuits agree with the Sixth Circuit’s alternative holding for respondents that when a decision maker discriminates against someone for being transgender, that discrimination is inherently based on sex,” the ACLU argued in its brief.

If the justices decide to weigh in, it could challenge the ideals of conservatives on the bench like Justice Neil Gorsuch, a Trump appointee who prides himself on basing his decisions on the text of the law.

Transgender advocates say you can’t discriminate against someone who is transgender without thinking about their sex.

“I think it would hypocritical in the extreme for justices, who claim to be textualists, to rule against Aimee Stephens,” said Tobin.

Alliance Defending Freedom (ADF), which is representing the funeral home in its appeal, disagrees.

“The claim rests on a faulty premise,” said Jim Campbell, a senior counsel at ADF. “Title VII does not define sex and should be given its understanding of when it was defined in 1964.”

Back then, he said, sex referred to male or female based on biology and physiology.

ADF’s argument relies heavily on a 2007 ruling from the 10th Circuit Court of Appeals, which said discrimination on the basis of transgender status is not a violation of Title VII.

The Department of Justice Department (DOJ) also argued in a brief last week that Title VII does not apply to discrimination against an individual based on his or her gender identity. DOJ said justices should first take up two other pending cases challenging whether anti-discrimination protections in Title VII extend to sexual orientation.

Transgender advocates say Stephens should prevail even if the justices take the case because the 6th Circuit ruled that the funeral home discriminated against Stephens based on a sex stereotype.

“Circuit courts have uniformly agreed that all people, including those who are transgender, may bring sex discrimination claims under Title VII if their employers discriminate against them because of sex stereotypes related to behavior and appearance,” ACLU argued.

he issue of whether or not Title VII’s protections extend to LGBT Americans has been the subject of several conflicting court rulings in recent years. Most recently, the Second Circuit Court of Appeals ruled that those protections did apply to discrimination based on sexual orientation, a ruling that overruled a prior ruling by a three-judge panel of the same court. Last year, a three-judge panel on the 11th Circuit Court of Appeals held that Title VII did not apply to discrimination based on sexual orientation. To a large degree, the court in that particular case based its ruling on the fact that there was no evidence in the record that banning discrimination based on sexual orientation was within the contemplation of Congress when the Civil Rights Act was passed in 1964. One month after that ruling, though, the Seventh Circuit Court of Appeals ruled in an en banc opinion that discrimination based on sexual orientation was “a form of sex discrimination” and therefore covered by the protections of Title VII. In December, the Supreme Court declined to hear an appeal in the 11th Circuit case. To date, none of the other cases have made their way to the nation’s highest court.,

While the cases involving student access to the bathroom that confirms to their gender identity raise, in addition to the claims under Title VII and Title IX, claims under the 14th Amendment’s Equal Protection Clause, these employment law cases are largely based on statutory interpretation. Specifically, the question that courts have wrestled with is whether or not the bar against discrimination in employment based on “sex” includes discrimination against a transgender employee who, for example, may have been born biologically male but identifies, dresses, and lives their life based on their gender identity as a woman. In those cases, perhaps the most important case is the Supreme Court’s ruling in a 1989 case called Price Waterhouse v. HopkinsIn that case, the Supreme Court found in favor of a female Plaintiff who had maintained that she had been denied partnership in the firm that employed her because she did not into the idea of what a female employee should look and act like. The ruling was significant for the purpose of anti-discrimination law because the Court ruled that sex discrimination under the Civil Rights Act included gender stereotyping and the action of discriminating against someone because they didn’t fit into some preconceived notion of what a person of a certain biological gender should be like was barred by Federal law. In this case, that would mean that a biological male who chooses to identify as a female could not be discriminated against in employment.

In the past, I have said that I was skeptical of the argument that Title VII’s ban on discrimination based on “sex” applied to claims based on gender identity because it seems clear from the legislative history that the drafters of the law did not even consider whether the law they were writing would apply to such claims. Based on the overwhelming weight of the court rulings on the discrimination issue, though, and upon further reflection, I’ve come to the conclusion that my previous position on this issue was faulty and that the Price Waterhouse precedent would clearly seem to apply here. Unless the Court is prepared to severely limit the holding in that case, it seems to me that, at least in the context of employment law, discrimination against transgender Americans based on the fact that their behavior, style of dress, or personal relationships do not fit within pre-existing notions of what “proper” for a biological male or female would seem to be clear examples of impermissible discrimination under the Civil Rights Act of 1964 and related law as interpreted in Price-Waterhouse.

Leaving aside those legal arguments, in a recent post on the case, Jazz Shaw contended that the case doesn’t get to the issue that, in his view, should be the one the court deals with:

This entire affair is problematic for a couple of reasons. What we’re dealing with here is a discrimination suit and it clearly seems that Stephens was discriminated against. Claiming that your religious beliefs forbid you from employing a man who dresses as and claims to be a woman is weak tea at best because I don’t recall the subject coming up in the Bible. Unless there is some aspect of the employer’s dress code which could demonstrate that Stephens couldn’t do his job while wearing a dress or that doing so would fundamentally damage their business interests, it’s tough to see why the courts would uphold the original judge’s decision.

But even if the Supreme Court takes on the case, no matter which way they decide, it doesn’t get to the underlying heart of the matter. Even asking them to rule on whether you can discriminate in employment or other areas against people suffering from gender dysphoria doesn’t get us anywhere. We don’t allow discrimination against anyone in this country. Why we need to add another layer to those laws to account for how someone dresses is a mystery to me, particularly when you consider that gender-specific clothing styles have increasingly become a thing of the past. If you can’t fire a woman for wearing a suit and tie to the office (and you can’t, and shouldn’t be able to) then you’re on thin ice claiming that you can fire a man for wearing a dress.

Here’s what the case doesn’t address. Are people suffering from gender dysphoria (or at least believing they are), technically some new, third gender? And in specific areas where gender distinction is traditionally held as being important (such as privacy in public restroom or shower facilities or being accepted in competitive sports with male and female categories) can the science of biology and the obvious differences between the sexes be simply swept away under the broom of Title IX and Title VII?

The vast majority of these questions, though they may be legitimate in the context of a case dealing with discrimination based on gender identity, are questions of fact that would be dealt with at the trial court level, most likely through expert witness testimony by medical professionals such as psychologists and psychiatrists who specialize in this field. It would then be up to the trier of fact, whether to accept such testimony and what weight to give it in the context of the case. In that regard, the appellate courts would largely be bound to accept the factual findings of the trial court unless there was some kind of manifest error by the trier of fact.

In any event, though, I’m not sure that these questions are even relevant to cases dealing with the rights of transgender Americans. Whether gender identity is, like sexual orientation, something that is largely determined by genetics, brain chemistry, and other issues beyond the control of the person impacted by it or whether it is a purely a matter of choice doesn’t strike me as being legally relevant, especially not in a case such as this one. The question before the Court here is whether or not it was permissible to fire the Plaintiff based on the fact that they don’t conform to what is considered “proper” for their biological gender. Whether that’s because of biology, psychology, or choice seems to me to be irrelevant.

In any case, it’s unclear if the Supreme Court will even take this case up on appeal. As noted, the Court of Appeals decision in this particular case is in line with previous rulings from other Circuits, meaning that there is no Circuit split, and there doesn’t appear to be any pressing need for the Supreme Court to chime in definitively on this issue. Because of that, the Court may choose to treat this issue in much the same manner as it did the early same-sex marriage cases when it let Circuit Court rulings striking down state laws banning same-sex marriage to stand while not creating a national precedent. It wasn’t until one court, the Sixth Circuit Court of Appeals, had issued a ruling different from those of other circuits that the Justices took up the case that ultimately led to the decision in Obergefell v. Hodges. If they choose to pursue a similar court of action here it could be some time before we get a national ruling on this issue. Whatever the Court decides to do, it likely won’t be to later this year, or early next year before we learn if the Justices have decided to accept the case for appeal. If they do accept it, that would mean oral argument sometime in the spring of 2019 at the earliest. In the meantime, you can follow the filings and other developments in the case at the Case Information Page for this case at SCOTUSBlog.

FILED UNDER: Law and the Courts, LGBT Rights, Supreme Court, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. Kathy says:

    I think we may find out Kennedy should have stuck around for one more term.

  2. Daryl and his brother Darryl says:

    No trans-gendered people are getting rights for the next 30-40 years, as long as Justice Boof is on the Court.

  3. PJ says:

    But, but, but Clinton would have appointed the same kind of Justices as Trump! There’s NO difference! Vote third party!


  4. Kathy says:

    I wonder where exactly the Constitution enshrines the right to discriminate people one doesn’t like.

  5. Gustopher says:


    I wonder where exactly the Constitution enshrines the right to discriminate people one doesn’t like.

    I would hazard a guess that it could be construed from the freedom of association clause of the first amendment, or within the penumbra of unenumerated rights vaguely referenced in the tenth.

    Where in the constitution does it say that a private entity cannot discriminate?

    If the racists in the south had implemented separate but equal to actually be equal, I think we actually would have an unfettered right to discriminate in private business.

    When the rights of the discriminated against were balanced against the rights to discriminate, the Supreme Court eventually sided with those who were discriminated against (after about a hundred years).

    As it is, we can lawfully discriminate against people for any reason except a small, enumerated set of protected classes, provided that there is no disparate impact against a protected class.

    If you wish to employ only people with odd social security numbers, for instance, that would be legal. In many states and municipalities, you can legally discriminate on basis of political beliefs (although, since minorities are a protected class, and more minorities are Democrats, you would be safer to discriminate against Republicans, since then you wouldn’t have a disproportionate effect on a protected class).

  6. DrDaveT says:

    Jazz Shaw wrote:

    Are people suffering from gender dysphoria (or at least believing they are), technically some new, third gender?

    “Believing they are”? Isn’t that kind of like claiming that someone only thinks they are in great pain, but they might be mistaken?

    At any rate, I’m not sure what rock Jazz has been living under, but (a) there’s nothing new here, and (b) thinking you should be able to count the different kinds of gender identity is a mistake to begin with. ‘Male’ and ‘female’ as historically interpreted already involve a lot of deliberate refusal to see what’s actually there.