One of the most significant civil rights questions developing over more than a quarter-century –how far did Congress intend to go to outlaw sex discrimination – is headed to the Supreme Court for a likely showdown. That issue is at the intersection of three phases in the modern civil rights revolution: on women’s rights, gay rights, and transgender rights.
In two historic laws, one passed in 1964, the other in 1972, Congress declared that discrimination “because of sex” or “based on sex” is illegal. The first is known as Title VII, and it mandated the equality of the sexes in the workplace. The second is known as Title IX, and it required sex equality in education programs paid for with federal funds.
The next test case likely to reach the Supreme Court involves Title VII, but following close behind likely will be one or more cases involving Title IX.
Lambda Legal, a gay rights advocacy group, has just announced that it will appeal to the Supreme Court during the summer on a case involving a woman who claims that she was discriminated against by her employer, a Savannah, GA, hospital, because she is a lesbian.
This year, for the first time in the 53-year history of Title VII, a split has developed between federal appeals courts on whether discrimination “because of sex” extends to bias based on a worker’s sexual orientation. That is an issue the Supreme Court has never answered. Moreover, in every year since at least 1979, bills have been introduced in Congress to extend Title VII’s reach to homosexual discrimination, but none of those bills has passed.
And, until last April, every federal court at the appeals level had ruled that bias against gays and lesbians because of their status was not covered by the 1964 law. The U.S. Court of Appeals for the Seventh Circuit broke ranks with sister courts on April 4, concluding that legal developments over the past two decades convinced that court that Title VII does, indeed, outlaw discrimination based on homosexuality. It ruled in the case of Hively v. Ivy Tech Community College that a part-time Indiana professor who claimed to have been fired because she is a lesbian could sue under Title VII. (The college in that case has opted not to appeal the ruling, but to go forward to defend itself at a trial.)
In May, another federal appeals court, in the Second Circuit, voted to reconsider before its full bench whether to abandon its prior view against applying Title VII to claims of sexual orientation on the job.
In the case that Lambda Legal is now preparing to take to the Supreme Court, the lesbian worker, Jameka Evans, has lost her plea for the U.S. Court of Appeals for the Eleventh Circuit to reconsider its prior precedent against extending Title VII. Last Thursday, that court denied any further review of her case, Evans v. Georgia Regional Hospital.
That cleared the way for her legal team to use the fact of an appeals court split as a basis for appealing to the Supreme Court. Very often, such splits are a key factor in the Justices’ willingness to grant review of a legal question.
The fact that Congress has refused repeatedly to expand the coverage of Title IX will be considered by the Supreme Court in deciding how to rule on the issue, but is not likely to be enough, by itself, to prevent the Justices from taking on the question for themselves, in view of the conflicting interpretations given by the appeals courts.
When the Seventh Circuit Court gave the broader interpretation to Title VII in the Hively case, that court’s lead opinion was based upon the view that the Supreme Court, especially in decisions in 1989 and 1998, had said that the 1964 law might actually provide greater protection as time goes on and circumstances change, even though the language of the law remained the same.
That opinion also relied in part upon a wide interpretation of the Supreme Court’s 1967 constitutional ruling in Loving v. Virginia, permitting interracial marriage, and on a series of more recent decisions by the Justices broadening gay rights under the Constitution – including the ruling two years ago in favor of same-sex marriage.
The Eleventh Circuit Court, in rejecting that kind of reasoning in Jameka Evans’ case, had said it had no choice but to rely upon a binding precedent in that geographic circuit, set in a 1979 case.
Evans claimed that hospital supervisors discriminated against her because, in her work as a security guard, she dressed in a male uniform and had her hair cut short. While she did not openly discuss her sexuality, her appearance and the knowledge that she was a lesbian were used against her, she claimed.
Evans had the support in the Circuit Court of the U.S. Equal Employment Opportunity Commission, which for the past two years has taken the position that Title VII does extend to ban discrimination based on sexual orientation.
If the Supreme Court were to rule in Evans’ favor, that would mean that Title VII would become a legal shelter for gays, lesbians and bisexual workers, and might also be at least a strong signal that it could protect transgender people.
The recently developing campaign to win equality for transgender people has been pursued both under Title VII and under Title IX, forbidding discrimination based on sex in federally funded education programs.
Last term, the Supreme Court showed it was interested in the transgender question under Title VII, when it agreed to hear the case of a transgender high school student who had been denied the use of the boys’ bathroom because he had been assigned female gender at birth. The youth, Gavin Grimm, has developed as a male.
The Justices had agreed to review the case, but then sent it back to the U.S. Court of Appeals for the Fourth Circuit, to take account of the Trump Administration’s decision to abandon the former Obama Administration view that Title IX did protect transgender people from discrimination.
The Fourth Circuit Court has scheduled a hearing on Grimm’s case for September 12 in Richmond, VA.
(NOTE: This post also appeared today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)