GENDER IDENTITY

Bostock v. Clayton County, Georgia

Issues

Does employment discrimination on the basis of an employee’s sexual orientation constitute a form of sex discrimination prohibited by Title VII of the Civil Rights Act?

This case consolidates two lawsuits, each containing a claim by an employee alleging that he was terminated by his employer because of his sexual orientation. These employees argue that Title VII of the Civil Rights Act, which proscribes discrimination “because of . . . sex,” inherently prohibits sexual orientation discrimination because one’s sexual orientation necessarily depends on one’s sex. To further support this argument, the employees contend that Title VII’s plain language, statutory and judicial history, and other provisions all support interpreting the statute to prohibit discrimination on the basis of sexual orientation. The employers counter that the plain meaning of “because of . . . sex” at the time of Title VII’s enactment, and courts’ reliance on this plain meaning in their past decisions, indicate that Title VII does not prohibit sexual orientation discrimination. The case’s outcome will have heavy implications for LGBT workers and business’ bottom lines.

Questions as Framed for the Court by the Parties

Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

This case consolidates two cases: the first brought by Gerald Lynn Bostock (“Bostock”) and the second by Altitude Express, Inc. and Raymond Maynard (collectively “Altitude Express”).

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R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission

Issues

Does Title VII of the Civil Rights Act of 1964 prohibit discrimination against transgender individuals, either as a form of sex discrimination or as impermissible “sex stereotyping” under Price Waterhouse v. Hopkins?

This case asks the Supreme Court to decide whether the prohibition of sex-based discrimination under Title VII of the Civil Rights Act of 1964 also extends to discrimination based on gender identity. Harris Funeral Homes (“Harris Homes”) terminated Aimee Stephens’s employment shortly after Stephens informed Harris Homes that she was transgender. Harris Homes and the Equal Opportunity Employment Commission (“EEOC”) take the position that Stephens’s termination was not discriminatory because her termination was premised upon her refusal to follow Harris Homes’s sex-specific and strictly applied dress code. Stephens counters that her dismissal was impermissible under Title VII because the decision to fire her was based on her sex and general principles of “sex stereotyping.” The Supreme Court’s decision will have implications for the wellbeing of transgender employees and for the religious interests of employers.

Questions as Framed for the Court by the Parties

Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

From October 2007 to August 2013, Aimee Stephens was employed as a funeral director for R.G. & G.R. Harris Funeral Homes (“Harris Homes”), a for-profit corporation operating funeral homes in Michigan. Equal Employment Opportunity Commission v. R.G. & G.R.

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Acknowledgments

The authors would like to thank Professor Michael C. Dorf for his guidance and insights into this case.

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United States v. Skrmetti

Issues

Does banning gender-affirming care for minors violate the equal protection clause of the 14th Amendment?

This case asks the Supreme Court to determine the extent to which the 14th Amendment’s Equal Protection Clause applies to gender-affirming healthcare for transgender minors. Tennessee’s Senate Bill 1 prohibits medical treatments intended to alleviate gender dysphoria or initiate gender transition for minors. The United States argues that the Bill violates the Equal Protection Clause by withholding medical care on the basis of a patient’s sex, or alternatively, that the Bill discriminates against a quasi-suspect classification: transgender status. Skrmetti contends that the Bill applies equally to Tennessee youth regardless of gender, that it is not motivated by discriminatory intent, and that transgender status does not meet the quasi-suspect class characteristics of being discrete, insular, immutable, and politically powerless. The case will have powerful implications for future state policies regarding healthcare and transgender care, especially for minors, in the continuing social and political conflict over LGBTQ+ rights.

Questions as Framed for the Court by the Parties

Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause of the 14th Amendment.

On March 2, 2023, Tennessee passed Senate Bill 1, which went into effect on July 1, 2023. L.W. v. Skrmetti at 469. The law prohibited minors in Tennessee from receiving gender-affirming care for gender dysphoria or enabling minors to live with a gender identity inconsistent with their sex assigned at birth. Id. at 470.

Acknowledgments

The authors would like to thank Professors Deborah Dinner and Sheri Lynn Johnson for their insights into this case.

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