The U.S. Supreme Court heard oral arguments on October 8 in three closely watched cases addressing whether Title VII, which prohibits employment discrimination “because of … sex,” covers discrimination based on LGBT status. Commentators have recognized that these decisions may have important implications for Title IX, which prohibits discrimination “on the basis of sex” in education programs and activities receiving federal funds. As with Title VII, it is currently unsettled whether Title IX protects LGBT individuals. And courts interpreting Title IX often rely on decisions interpreting Title VII in reaching their decisions. In the oral argument in one of the cases, Harris Funeral Homes v. Equal Employment Opportunity Commission, questions by the Supreme Court Justices gave us even more reason to believe the case will impact the interpretation of Title IX as applied to transgender students.

The Cases

The first two cases before the Court deal with claims by gay employees that they were discriminated against by their employers on the basis of sexual orientation. In Bostock v. Clayton County, the Eleventh Circuit Court of Appeals held that Title VII does not cover sexual orientation discrimination. In Zarda v. Altitude Express, the Second Circuit reached the opposite conclusion. For more insight on these two cases check out our Franczek alert from earlier this year.

The third case, Harris Funeral Homes, involves a similar complaint of employment discrimination, but this time based on transgender status. In the case, a transgender female funeral home employee, Aimee (formerly Anthony) Stephens, claims that she was discriminated against based on sex when her boss fired her after she told him that she was going to live and identify as a woman rather than as a male, which is the sex she was assigned at birth. There is no dispute as to the reason why Stephens was fired. The parties disagree, however, as to whether the federal employment law that prohibits discrimination on the basis of sex, Title VII of the Civil Rights Act of 1974, covers discrimination against a transgender employee. In other words, is discrimination based on transgender status discrimination based on sex? That was the question before the Court on Tuesday.

The Oral Argument in Harris

During the oral argument in Harris on October 8, the Justices of the Court seemed preoccupied with another question: If we find that Title VII prohibits discrimination based on transgender status, will we also have to find that prohibiting a transgender employee from using the communal restroom or locker room that corresponds with the employee’s gender identity is discrimination on the basis of sex in violation of Title VII?

Justice Sotomayor, who is considered one of the liberal Justices on the court, explained this question as follows:

[L]et’s not avoid the difficult issue, okay? You have a transgender person who rightly is identifying as a woman and wants to use the women’s [bathroom], rightly, wrongly, not a moral choice, but this is what they identify with. Their need is genuine. I’m accepting all of that … and they want to use the women’s bathroom. But there are other women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathroom. That’s why we have different bathrooms. So the hard question is how do we deal with that?

This is obviously a key question in the current battles over transgender student rights under Title IX. The attorney for Stephens said again and again that this question was not before the Court and could be brought before the Court even if the Court rules against Stephens in this case. But the Court was almost laser-focused on the issue. And that’s when Title IX came into play.

Justice Alito, who is considered a conservative Justice, asked the attorney for Stephens the following:

Let me move beyond the bathroom to another example. And it’s not before us, but it will be coming. So a transgender woman is not permitted to compete on a women’s college sports team. Is that discrimination on the basis of sex in violation of Title IX?

Stephens’ attorney responded that Title IX is a different statute than Title VII, with different rules that allow sex-segregated teams when competitive skill or contact sports are involved. He explained further:

[I]t may be that Title IX recognizes concerns about competitive skill in contact sports, that it’s permissible. It may be that it’s not permissible. But this — this case just asks, when you fire someone because you say she — he was going to represent himself as a man, because she was using the name Aimee and that’s not permissible because he’s a man, is that sex discrimination? Yes, that’s sex discrimination.

According to the attorney for Harris Funeral Homes, this case is “about showers and overnight facilities and sports. Every single one of those is impacted if you’re talking about a sex-specific policy.”

Reading the Tea Leaves

Trying to guess how the Court will decide a case from what is said during the oral argument can be a little like trying to read tea leaves. But the oral argument in Harris Funeral Homes at least solidified our belief that the Court’s decision will have ripple effects for Title IX. The Justices certainly appear to be contemplating those effects in deciding how they will rule in this case.

Will the Justices be so concerned about the potential reach of a decision to more controversial areas such as transgender access to bathrooms and locker rooms that they will be wary of recognizing protections for transgender workers under Title VII? During the oral arguments, Justice Gorsuch asked counsel for Stephens whether “the massive social upheaval that would be entailed in such a decision” warranted leaving any change to the interpretation of Title VII to Congress. Or will a majority of the Court be persuaded by the arguments of counsel for Stephens that whatever decision they reach in this case will not tie their hands with respect to how they would decide questions such as facilities access for transgender individual or the right of transgender athletes to join the sports team that corresponds with their gender identity? We will have to wait until next year for the Court’s decision, but it is clear that these Title VII cases are cases to watch with respect to students as well as employees.