By: Caitlyn Heter

In 2015, the Supreme Court held in a 5-4 decision “that same-sex couples may exercise the fundamental right to marry in all states.”  Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015).  Justices who dissented were concerned in part with taking away the authority of states to define marriage, and in part with the idea of “[s]tealing this issue from the people” and “making a dramatic social change that much more difficult to accept.” Id. at 2612 (Roberts, J., dissenting).

Five years later, social change is still hard-fought: while LGBTQ Americans are free to marry as they choose, over half remain unprotected from employment discrimination based on sexual orientation or gender identity.  Susan Miller, ‘Shocking’ Numbers: Half of LGBTQ Adults Live in States Where No Laws Ban Job Discrimination, USA Today (Oct. 8, 2019, 4:50 PM),

And the Court is still afraid of involving itself with social change, even where a clear textual question of law is at issue.  Dissenting Justices in Obergefell complained that the majority’s decision constituted “an act of will, not legal judgment.”  Obergefell at 2612 (Roberts, J., dissenting).  Now, the Court has a question of statutory interpretation in front of it; yet, it seems they may still have cold feet.

Circuit courts have been split on their interpretation of a Title VII law that prohibits employment discrimination because of sex.  42 U.S.C.S. § 2000e-2.  Some circuits hold that sexual orientation claims are within the terms of the statute, while others have held that sexual orientation is not a protected class.  Compare Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (holding that “sexual orientation discrimination is rooted in gender stereotypes and is thus a subset of sex discrimination” and that alternate constructions separating sex from sexual orientation are “unworkable”) with Bostock v. Clayton Cty. Bd. of Comm’rs, 723 Fed. Appx. 964 (11th Cir. 2018) (upholding dismissal of sexual orientation discrimination claim argued as sex-based discrimination under 42 U.S.C.S. § 2000e-2).  After declining to hear an LGBTQ employment discrimination case in 2017, the Supreme Court heard oral argument in October 2019 on three cases that are expected to bring clarity to this area of law.  The question is purely one of textual interpretation: whether discrimination based on sexual orientation or transgender status is prohibited as discrimination “because of [ . . . ] sex.”  42 U.S.C.S. § 2000e-2.

In oral argument on R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, Justice Gorsuch implied that regardless of the textual determination, he would be hesitant to make a determination in favor of transgender individuals based on the “massive social upheaval that would be entailed in such a decision.”  Transcript at 25.  This hesitance is clear in other recent cases as well: in Masterpiece Cakeshop v. Colo. Civil Rights Comm’n, the Court declined to set a clear boundary between the rights of gay couples who face discrimination when seeking goods and services and the right of all people to free speech.  138 S. Ct. 1719, 1732 (2018) (“The outcome of cases like this in other circumstances must await further elaboration in the courts”).

On the one hand, we should not expect a panel of nine to make any determinations of social normativity for a nation of millions.  On the other, we as a nation rely on that panel to provide clarity where the present application of the law invites chaos.  Here, there are two possible interpretations of the Title VII law at issue: either sexual orientation is included as discrimination “because of sex,” or sexual orientation is a distinct classification that the statute does not expressly include.  Judges in multiple circuits have expressed not only their support of the former argument, but their concern regarding the latter.  See e.g. Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018); Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339 (7th Cir. 2017) (holding that a distinction between gender non-conformity discrimination and sexual orientation discrimination was not “gossamer-thin” but in fact nonexistent).  Perhaps the Hively court states it best: “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’ The effort to do so has led to confusing and contradictory results.” Hively at 350.  For example, all employees are protected from discrimination and harassment based on failure to conform to gender stereotypes following Price Waterhouse v. Hopkins, unless that stereotyping is related to sexual orientation and not sex.  490 U.S. 228 (1989).  These stereotyping cases highlight the reality that the distinction lacks purpose.

The Court recognized in Obergefell that “[l]eaving the current state of affairs in place would maintain and promote instability and uncertainty.”  Obergefell at 2607.  A similar state belies the same group of individuals now. The Court has two justifiable options. Title VII either does or does not protect LGBTQ individuals from workplace discrimination.  My fear is that the Court will construct a third option: decline to choose, due to fear of social backlash, and kick it over to a legislature that has failed for many years to clarify its intentions.

While I have my own preference for how the Court should hold, this third option would be the scariest choice of all.  Without a determination on this issue, the Court will leave LGBTQ Americans stranded at the altar: free to marry, but restricted by the consequences that may await them at work.  We need a Court that has the courage to end this confusion.  If the Court is unwilling to decide on a straightforward issue of textual interpretation, I begin to wonder how low the social stakes must be for the Court to be comfortable making any determinations of law.