These Title VII cases will be argued separately on October 8.
Docket for 17-1618 (Supreme Court docket #17-1618)
Docket for 17-1623 (Supreme Court docket #17-1623)
Docket for 18-107 (Supreme Court docket #18-107)
The first two cases above that relate to the question immediately below are consolidated for oral arguments and will be argued first that day.
Issue : Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
The remaining case above relates to the question below.
Issue : Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins .
Because these cases are discussing essentially both sides of the same coin, I will comment on them together, as frankly they will either win together or lose together, and even though they are being argued separately, it is quite possible they are decided in the same opinion. It should be noted that they were briefed together.
Title VII of the Civil Rights Act of 1964 was clearly aimed at simple gender discrimination, not sexual orientation or transgender status.
Section k of Title VII reads:
(k) The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title [section 703(h)] shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.
I believe that a fair interpretation of the statute clearly indicates that sexual orientation and transgender status are NOT protected classes under Title VII. Only the Constitution or Congress can create a protected class, not the courts.
Therefore it is my well considered opinion that the Supreme Court should rule accordingly.
Subsequently, it is also my well considered opinion that Congress should enact a statute adding those classes to Title VII.
I support the protection of these classes, but it is NOT something the courts can do, as it is clearly not supported by any possible reading of Title VII. Congress in 1964 had women in mind, not gays, lesbians, bisexuals, transgender, etc.
That is something a future Congress must address.