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The Supreme Court Will Soon Decide the Issue of Sexual Orientation Discrimination

Many different jurisdictions have addressed the question of whether Title VII, one of the primary anti-discrimination laws in the area of employment, protects against discrimination based on sexual orientation or gender identity. However, those jurisdictions have issued conflicting opinions. Until this point, the highest federal court has not addressed this important issue. On April 22, 2019, the U.S. Supreme Court decided to review three employment discrimination cases that could potentially settle this question. Two of the cases involve issues of sexual orientation and the last case relates to gender identity.

The Current State of Opinion Regarding Sexual Orientation Protections

Currently, the federal circuit courts are divided in their interpretations of Title VII and its prohibitions against discrimination based on an individual’s “sex.” As for the Administrative arena, the Department of Justice does not interpret Title VII as including sexual orientation as a protected characteristic, while the EEOC has always maintained that it does. Before 2017, the general consensus among the federal courts was that Title VII does not apply to discrimination based on sexual orientation. In 2017, however, the Second and the Seventh Circuits issued opinions that discrimination because of sex included sexual orientation. In one of those cases, which involved the discrimination claims of a transgender employee, the Supreme Court limited its review to “[w]hether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping.”

What Does Gender Identity Discrimination Mean?

The term "transgender" refers to an individual whose self-identity does not conform to conventional notions of male or female gender. A transgender employee may or may not have undergone gender reassignment surgery. Gender identity discrimination simply means treating someone different, or taking a negative employment action against someone, because of their gender identity or gender expression. Some common forms of gender identity discrimination may include termination when an employer finds out about a plan to undergo gender reassignment surgery, termination for cross-dressing outside the workplace, termination or discipline for failure to conform to a company dress code policy by wearing clothing appropriate to your gender identity, and being refused access to workplace restrooms.

How is Sexual Orientation Discrimination Different?

The difference between discrimination based on sexual orientation and discrimination based on gender identity may be confusing. In the legal arena, sexual orientation refers to whether or not an individual is homosexual, heterosexual, or bisexual. In other words, your sexual preference – gay, straight, or bisexual. However, not everyone who is transgender is homosexual. There are many transgender individuals who consider themselves straight. For example, a transgender woman may have male partners. Essentially, transgender discrimination often has little to do with sexual orientation.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Wrady Michel & King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!