Supreme Court Bans LGBTQ Employment Discrimination


Tuesday, June 30, 2020

The U.S. Supreme Court’s ruling last week extended protections against employment discrimination to LGBTQ people. This decision can bring change to high school and college campuses across the country.



Last week, the U.S. Supreme Court ruled 6-to-3 in a decision that cemented LGBTQ workers’ protections from sexual orientation and gender identity discrimination signaled to colleges and universities that they must ensure fair treatment of transgender students playing campus sports and living in dormitories.


The ruling extended protections against employment discrimination to LGBTQ people under the Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the workplace on the basis of race, sex, religion or national origin. “Sex” encompasses both sexual orientation and gender identity, which opens doors to challenges of this definition under Title IX, which is the law that prohibits sex discrimination at federally funded institutions.

Associate Justice Neil Gorsuch said, “The answer is clear. 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.”

The three justices who dissented noted the “slippery slope” that colleges and universities are on due to the potential increase in lawsuits challenging institutional policies on gender-separated living facilities and sports teams. Lower courts that address whether homosexual or transgender people can be discriminated against under Title IX’s definition of “sex” will consider this new definition under Title VII.

Jake Sapp, a Title IX legal researcher at the Stetson University Center for Excellence in Higher Education Law, shares, “This determination is really going to play into so many decisions across the country. Title VII reaches everyone. The real impact is going to be in lower courts answering this question. They now have the Supreme Court’s decision to turn to.”

The ruling states that a person’s LGBTQ identity is “inextricably bound up with sex” but the dissenting justices refer to a strict interpretation of the law when it was passed in the 1960s. Congress probably did not intend for protections to extend “sex” beyond male and female. Title VII does not explicitly state “sexual orientation” or “gender identity” as attributes protected from discrimination. This interpretation, according to Associate Justice Samuel Alito, will have “far-reaching consequences” notable under Title IX.

Alito was concerned about the impact on colleges that base dorm assignments or bathroom use designations on biological sex. He also noted that transgender athletes can now argue they have the right to compete against students of a different biological sex. Applying the same Title VII definition of “sex” to Title IX may “undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports”, says Alito.

Under President Obama, the Department of Education required that colleges treat transgender students as the gender with which they identify or face sanctions for violating Title IX. The Trump administration rescinded this guidance in 2017. Last month, the Trump administration also a Connecticut high school athletic conference was in violation of Title IX for allowing transgender women to compete in track against students who were assigned female at birth.

The Supreme Court ruling offers high schools the chance to challenge the department’s decision and establish that discrimination based on sex as prohibited under Title IX also applies to transgender students. This could extend to federally funded colleges.

The ruling has implications for a Title IX case currently circulating in the U.S. Court of Appeals for the Fourth Circuit that involves a transgender high school student’s right to use the bathroom of their choice. The judges and the attorneys involved in the case were anticipating the Supreme Court ruling to have an impact on the bathroom case. The definition of sex under Title VII would be a determining factor in whether Title IX’s definition also applies to discrimination for being transgender.

It’s as simple as following: If it is unlawful discrimination to discriminate based on transgender status under Title VII, it is good argument to say that it’s a violation under Title IX to discriminate based on transgender status. This will be interesting considering the department under the current administration has been active in saying that “sex” is what someone is assigned at birth and something based on biological characteristics.

GLSEN, a nonprofit organization that advocates for LGBTQ students, urged U.S. Secretary of Education Betsy DeVos to reverse attacks on trans students immediately given the Supreme Court ruling’s decisive guidance.

Eliza Byard, GLSEN’s executive director, shares, “Today, the Supreme Court couldn’t have been more clear, ruling that it is ‘impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Now [DeVos] can no longer hide behind the claim of waiting for the courts. Trans girls are girls. Trans boys are boys. And the law protects them from discrimination ‘on the basis of sex.’”

This Supreme Court ruling is sure to affect college and university employees at religious-oriented institutions who are targeted for identifying as LGBTQ. The ruling creates a wall of legal precedent that will protect transgender students from the Trump administration’s efforts to reduce their rights. It signals to college and university leaders where the law is headed.




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