The Title VII Challenges 

In three separate federal lawsuits challenging employment terminations under Title VII of the Civil Rights Act of 1964 (“Title VII”),  the Supreme Court decided that employment discrimination based on an employee’s homosexuality or transgender status violates Title VII.¹ 

Title VII makes it “unlawful for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual  because of such individual’s race, color, religion, sex, or national origin.” ²

In the first case (the “Bostock” case), Gerald Bostock, a child welfare advocate for Clayton County, Georgia, was terminated for conduct “unbecoming” a county employee after he joined a gay recreational softball league. In the second case (the “Zarda” case), Donald Zarda, a skydiving instructor, mentioned to a client that he was gay and was fired days later. In the third case(the “Stevens” case), Aimee Stephens, a funeral director in Michigan who was born a biological male, was fired after she wrote a letter informing her employer that she intended to “live and work full-time as a woman.”  

Lower Court Rulings

In Bostock’s case, the Eleventh Circuit Court of Appeals held that Title VII’s prohibition on sex discrimination does not prohibit employers from firing employees because of being gay. In Zarda’s case, however, the Second Circuit Court of Appeals reached the opposite conclusion, and in Stephens’ case, the Sixth Circuit determined that Title VII prohibits termination based on transgender status. The U.S. Supreme Court agreed to consolidate and review the cases to resolve the split among the circuit courts as to the meaning of sex discrimination under Title VII.

Supreme Court Ruling

The employers in the three cases argued the term “sex,” as understood when Title VII was enacted to mean a person’s “status as either male or female based on reproductive biology.” The employers argued homosexuality and transgender status are conceptually different from sex, therefore, Title VII does not prohibit firing someone for being gay or transgender. In a 6-3 decision, the U.S. Supreme Court disagreed. 

Writing for the majority in the Supreme Court Decision, Justice Neil Gorsuch wrote that Title VII prohibits employment decisions that would not have been made “but for” a person’s sex, even if other factors were also relevant to the decision. For example, an employer may have two employees, a male and a female, both of whom are attracted to men. The employer fires the male employee because he is attracted to men but does not fire the female employee. Although the employer may argue that it did not intend to treat male and female employees differently, the employer’s decision singled out the male employee based, at least in part, on his sex. Therefore, according to Justice Gorsuch, the employee’s sex is a “but-for” cause of the employment decision.  

Similarly, if an employer fires a transgender person who was born a biological male but now identifies as a female but retains an employee who was identified as a female at birth, the employer “intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Justice Gorsuch explained, “An employer who fires an individual for being homosexual or transgender, fires that person for traits or actions it would not have questioned in members of a different sex.” “Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids.”

Potential Title IX Implications for School Districts

It can be anticipated the recent Supreme Court decision may result in more legal challenges regarding various sex-based distinctions within the school setting, based upon Title IX, which prohibits sex discrimination by any elementary or secondary school and is generally interpreted consistently with Title VII.  The dissent in the decision raised the 2016 Department of Justice (“DOJ”) advisory regarding transgender students and use of bathroom facilities, which has since been withdrawn.  The now withdrawn advisory required schools to permit transgender students to use bathroom facilities based upon the sex with which they identified, and some lower federal courts have already ruled consistent with the now withdrawn DOJ guidance.³  

Another issue the dissent in Comstock raised under Title IX is the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex, which has already arisen under Title IX.  The dissent warned that the effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male.⁴ 

An additional area of litigation that may be implicated is litigation challenging hair length restrictions of male students as a violation of Title IX.  Within the 5th Circuit and Texas, Courts have upheld sex-based dress code distinctions in some older decisions and invalidated hair length restrictions in cases challenging the restrictions based upon religious objections under the First Amendment.  Outside of the Fifth Circuit, courts have applied an intermediate level of scrutiny, which requires the district to show, that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.  If neither of the above apply, then a plaintiff's right to equal protection is violated only if the policy is not “rationally related to a legitimate government purpose."⁵  However, based on the recent Supreme Court decision in Bostock, we may anticipate further challenges to sex-based distinctions, though, the standard applied will most likely be the intermediate scrutiny standard outlined above. 

Other challenges, such as transgender students seeking enrollment in single sex charter schools are also foreseeable, based on the recent decision, in addition to the previously mentioned right of a transgender student to participate on a sports team or in an athletic competition previously reserved for members of one biological sex will likely result in increased litigation in light of the recent ruling. 

In summary, employment and/or school decisions based on gender identity and/or sexual orientation is an area that is now ripe for litigation.  In his opinion, Justice Gorsuch clarified that the Court’s holding was limited to Title VII employment discrimination and that questions whether “other policies and practices might or might not qualify as unlawful discrimination . . . are questions for future cases, not these.” Although the Court specifically did not address applicability beyond the Title VII employment cases before the Court, it also specifically did not foreclose later challenges of other statutes prohibiting discrimination on the basis of sex.  Stay tuned!
Should you have questions about this article or matters related to sexual orientation and  gender identity issues arising in the context of employees and/or students, please contact Sara Leon & Associates so that we may provide guidance as we navigate this new and developing area of the law.