The LGBTQ Cases to Watch at the U.S. Supreme Court This Term

By Adam Polaski • October 1, 2018 • 4:17 pm

The United States Supreme Court returns for its 2018-2019 term on October 1, and it could once again be an impactful year for LGBTQ Americans. Several petitions for Supreme Court review have already been filed, and many other cases are already in federal appellate courts or far down the line in the litigation process. With so many LGBTQ Americans facing discrimination every year, there is a clear and urgent need for inclusive nondiscrimination protections nationwide; if the Supreme Court agrees to hear any of these cases, there’s no question that Americans from across the political spectrum, from all faith backgrounds, and from across the country will come together to urge the Court to protect LGBTQ people from discrimination and mistreatment. Take a look at five issues the justices could consider this term:

Employment Protections against Discrimination Based on Sexual Orientation

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on, among other things, sex – and for years, legal scholars and advocates have been making the case that these protections also cover discrimination based on sexual orientation and gender identity. After all, targeting someone because they love a person of the same sex or because they transitioned genders is inherently discriminating against them because of their sex. In recent years, legal consensus has grown, with two federal appellate courts – the 2nd Circuit and the 7th Circuit – determining that Title VII prohibits discrimination based on sexual orientation.

Petitions for Supreme Court review have been filed in two separate cases concerning anti-gay workplace discrimination. The first, Altitude Express v. Zarda, concerns a man fired from his job as a skydiving instructor in New York after disclosing to a client that he was gay. In February 2018 the 2nd Circuit Court of Appeals, sitting en banc (with all of the circuit’s judges weighing in rather than a 3-judge panel) ruled in favor of the man, who has passed away since his case was filed. A second petition is pending in Bostock v. Clayton County, Georgia, which centers on a man fired from his job because he is gay. The case was dismissed by the U.S. District Court for the Northern District of Georgia and in May 2018 the 11th Circuit Court of Appeals affirmed the dismissal, noting that the case could not proceed because circuit precedent does not recognize that Title VII includes discrimination based on sexual orientation.

Although these petitions are fully briefed and were originally distributed and scheduled for discussion at the justice’s first conference this week, they have since been rescheduled for an as yet unscheduled future date.

Employment Protections against Discrimination Based on Gender Identity

Similar to the claims from gay people in Bostock and Zarda, a case brought by the EEOC argues that Aimee Stephens, a transgender woman in Michigan represented by the ACLU, was fired from her job as a funeral director because of her gender identity and that this discrimination violates Title VII of the Civil Rights Act of 1964. Several federal appellate courts have determined that federal laws prohibiting “sex discrimination,” including Title VII, prohibits discrimination based on gender identity.

In March 2018 the 6th Circuit Court of Appeals reaffirmed its longstanding precedent that discrimination based on gender identity violates Title VII in the case, EEOC and Aimee Stephens v. R.G. & G.R. Harris Funeral Homes. Now, the Alliance Defending Freedom, an extremist anti-LGBTQ organization, has filed for Supreme Court review. The petition will be fully briefed by the end of October and ready for discussion among the justices shortly after.

Claims from Non-Transgender Students That Transgender-Inclusive School Policies Violate Privacy

For years transgender students have been standing up in court against discriminatory policies in their school districts – policies that refuse to acknowledge the dignity of transgender people by restrict restroom access for transgender children.

Last year, however, a group of non-transgender students brought their own lawsuit, attacking their Pennsylvania school’s trans-affirming policies. Their argument in the case Doe v. Boyertown is that these affirming policies violate their own rights under Title IX of the Education Amendments of 1972. Title IX is designed to prohibit discrimination and harassment based on sex.

These shameful arguments have been slapped down in several courts, and in this case the U.S. Court of Appeals for the 3rd Circuit issued a strong opinion in July 2018 rejecting them and affirming the trial court’s denial of a preliminary injunction against the school’s policies. The Alliance Defending Freedom, representing the non-transgender students, has said it will file for Supreme Court review.

Businesses Seeking a License to Discriminate Against LGBTQ People

In June 2018 the justices issued an opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission that rejected a constitutional right to discriminate and affirmed the importance of keeping businesses and public spaces open to all people, including LGBTQ people. The court, however, found that the Colorado Civil Rights Commission erred in its handling of the case by being overly hostile to the religious beliefs of a business owner.

Now, anti-LGBTQ activists are continuing their long-in-the-works efforts to divide the country with similar cases of business owners who wish to deny service or turn away LGBTQ people. Several similar cases could reach the Supreme Court in the coming months – including a case out of Hawaii featuring a bed & breakfast that turned away a same-sex couple, a case in Oregon filed by a baker who wants to refuse to serve same-sex couples, and an Arizona stationery design business that wants to deny service to LGBTQ people. In each case, the state’s courts ruled that businesses must be open to all. Notably, the Arizona appeals court reached its conclusion days after the Masterpiece Cakeshop decision and included language from Justice Anthony Kennedy’s opinion as evidence that businesses must serve all people equally and are not entitled to a license to discriminate.

Meanwhile, we await movement in Arlene’s Flowers v. Washington, which involves a flower shop that turned away a same-sex couple. The U.S. Supreme Court has sent the case back to the Washington Supreme Court to ensure that no anti-religious hostility was involved in the lower court decisions.

The Trump Administration’s Proposed Ban on Open Service for Transgender People

Four separate legal cases are now working their way through the courts to challenge the Trump Administration’s 2017 proposed ban on open military service for transgender Americans. Since the cases were filed, we’ve seen an unbroken string of victories for transgender servicemembers and transgender people who wish to serve, with numerous federal courts  concluding that the ban is discriminatory. It’s possible that one or more of these cases could reach the U.S. Supreme Court in the 2018-2019 term – we’ll keep an eye on all of the cases, applaud our legal partners at the ACLU, Lambda Legal, GLAD, NCLR, and more, and continue to do everything possible to #ProtectTransTroops!

Keep up with all of this LGBTQ-related litigation and more in Freedom for All Americans’ Litigation Tracker.

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