While we wait for the major decisions from this term over the next seven weeks, the Supreme Court has added three cases for next term (likely to be argued in the Fall and decided next Spring) involving sexual orientation and employment.  Two cases involve gay men who allege that they were terminated for being homosexual and one involves a transgender individual who alleges discrimination based on that status.  While at the lower court level, all three claimed, in part, that one of the factors in the employment decision was their failure to comply with gender stereotypes (i.e. they did not conform to the employer’s expectations for male behavior), that claim is only part of the Supreme Court case for the transgender individual.

These cases are going to be difficult for the employees to win, especially the two gay men.  Their claim is statutory, based on Title VII (of the Civil Rights Act of 1964 as amended) which bars discrimination in employment “because of sex.”  And the natural reading of “because of sex” is “because of gender.”  That is the way that the Supreme Court has always read the provision.  And, even today, many states and government agencies use “sex” when they mean gender (e.g., on driver’s licenses and application forms).  The arguments of the employees is hindered by the fact that their claim is statutory rather than constitutional.  Other than the most conservative justices, the justices are somewhat willing to apply constitutional texts and principles to new issues.  Put simply, a constitutional amendment is viewed as an extraordinary thing.  Thus, if a claim is similar enough to existing constitutional protections, courts will sometimes find that it fits under those protections. 

On the other hand, notwithstanding the current problems in Congress, courts tend to see statutory problems as something that the legislature could fix if the legislature wanted to fix the problems.  And Congress has failed to pass proposed legislation that would amend Title VII to include sexual orientation (or create Title VII-type protections against discrimination based on sexual orientation).  Continue Reading...