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A Landmark Victory for LGBT Rights, But Who Isn't Protected?

This morning, the Supreme Court ruled 6-3 that discrimination based on sexual orientation and sexual identification is a form of sex-based discrimination. Justice Gorsuch wrote for the majority in Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC, 590 U.S. ___ (Jun. 15, 2020), which was joined by Chief Justice Roberts, and Justices Ginsburg, Sotomayor, Kagan, and Breyer.

Title VII of The Civil Rights Act specifically prohibits discrimination because of sex; this has often been interpreted to protect discrimination against someone's status as a male and female using traditional definitions, but more recently, some courts have expanded the definition to discrimination based on sexual orientation and identity. The Supreme Court's opinion is so important because it establishes a consistent rule, and frankly, a sound legal explanation as to how the existing law protects LGBT individuals. However, it does have certain limitations and it is ambiguous how this ruling would cover employees who fall under less prevalent gender identities and gender identifications.

The majority sought to clarify what exactly discrimination "because of" sex meant. As they explained, bigots who discriminate based on sexual orientation or identity due so "because of" the combination of the person's sexual orientation or identity along with the person's sexual status assigned at birth. A transphobic employer only discriminates against employees that identify as female if the employee was also born with male sexual organs. Had the employee been born with female sexual organs, their choice to identify as a female would not be attacked. Therefore a transgender woman is discriminated against, not only because of how she chooses to identify, but because she was born with male sexual organs.

While this opinion is a large step in the right direction, the Supreme Court does not address how this would apply to others within the LGBT community with sexual orientations and identities that are not as commonly shared with their heterosexual colleagues. This includes individuals who are bisexual, individuals who are transgender but identify as something other than male or female, and other individuals who fall within any number of other orientations or identities.

Applying the court's logic, it could be argued that an employer that does not discriminate against a heterosexual male, a heterosexual female, a gay male, or a lesbian female, but does discriminate against both males and females who are bisexual, is not doing so "because of" those bisexual employees' underlying sexual status observed at birth, but based solely on the person's sexual orientation. The same argument could be made for someone that is pansexual, or any of a multitude of sexual orientations.

When it comes to gender identity, many transgender individuals have elected to identify as something other than male or female. For example, one such sexual identity is bigender. Once again, the Court's logic would not seem to apply to discrimination against a bigender individual as long as the employer discriminates against all bigender individuals, regardless of their sexual assignment at birth.

Despite the gaps in the decision highlighted above, the sigh of relief for LGBT employees is that employers would face an uphill battle to convince a judge that their bigotry is so narrowly and specifically tailored. Most judges applying common sense would assume that an employer discriminating against a bisexual man is doing so because he is a man who is sexual with other men, not because of his combined preference for men and women.

The employer might actually have a stronger argument where the discriminating individual was actually another member of the LGBT community. For example, consider a transgender woman who explains to the court that she dislikes other transgender individuals that identify as something other than male or female because she believes such individuals have made it harder for the general public to understand and accept transgender issues. If that transgender woman refuses to hire a bigender individual because of their gender identity, it would seemingly have nothing to do with the bigender person's sex as assigned at birth and therefore fall outside of Title VII protections.

Though arguments about these exceptions may arise in a very limited number of cases and prevail in even less, it is important that vulnerable employees are not left behind. The Supreme Court's decision stretches the original language to an appropriate interpretation, but these protections would be stronger and more clear-cut if the legislature amended Title VII to expressly include sexual orientation and identity under Title VII.

- James Solomon

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