The question of whether Title VII affords gay protections has reached the Supreme Court. Washington Blade file photo by Michael Key

Lawsuit Seeking Gay Protections Under Title VII Reaches Supreme Court

BY CHRIS JOHNSON, WASHINGTON BLADE

The question of whether lesbian, gay and bisexual people are covered under current federal civil rights law has reached the U.S. Supreme Court -- where a nationwide ruling would clarify anti-gay workplace discrimination is illegal under Title VII of the Civil Rights Act of 1964.

In a 30-page filing, the LGBT group Lambda Legal makes the case the high court should take up to clarify the clarify the nationwide prohibition on sex discrimination in the workplace under Title VII applies to cases of lesbian, gay and bisexual people.

"This Court should carry out that task without delay," the petition says. "Ours is a national economy, and basic protections in the workforce should not depend on geography. More fundamentally, lesbian, gay, and bisexual Americans will not enjoy true legal equality until their sexual orientation is irrelevant not only to their right to enter into consenting relationships and to marry but also to their ability to maintain jobs and pursue their livelihoods."

The question presented before the court is "whether the prohibition in Title VII of the Civil Rights Act of 1964 against employment discrimination 'because of . . . sex' encompasses discrimination based on an individual's sexual orientation."

The petition seeks Supreme Court review of the U.S. Eleventh Circuit Court of Appeals decision in case of Jameka Evans, a security guard who claims she was targeted for harassment and effectively terminated from her job at Georgia Regional Hospital for being a lesbian.

Bucking a nationwide trend of court rulings, a three-judge panel on 11th Circuit determined Title VII, which prohibits discrimination on the basis of sex, afforded her no basis for relief because sexual-orientation was a separate issue. Earlier this year, the full 11th Circuit refused to reconsider the decision "en banc," or before the full court.

The petition argues the Supreme Court should take up the case based on split rulings among federal circuit courts, citing a recent from the U.S. Seventh Circuit Court of Appeals in favor of gay protections under Title VII.

The filing also cites dissonance among the federal agencies. The U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal employment non-discrimination law, determined in 2015 sexual-orientation discrimination amounts to unlawful sex discrimination under Title VII. The U.S. Justice Department under U.S. Attorney General Jeff Sessions, however, recently argued against gay protections under Title VII in a separate case before the U.S. Second Circuit Court of Appeals.

"That the federal agencies charged with enforcement of Title VII have staked out wholly contradictory positions regarding the scope of Title VII's prohibition on sex discrimination further reinforces the need for this Court's guidance," the brief says.

But the brief also asserts the Supreme Court should take up the case because the 11th Circuit erred in ruling against Evans, arguing anti-gay discrimination is favor of sex stereotyping the Supreme Court rendered unlawful in earlier decisions.

"Petitioner's claim rests on the fact that if she were a man, or if she dressed and behaved in a more stereotypically feminine way, or if she were attracted to men rather than to women, respondents would have treated her differently," the brief says. "This is sex discrimination, pure and simple. Title VII nowhere carves out lesbian, gay, and bisexual people from its categorical protection against sex discrimination."

For the high court to agree to grant a writ of certiorari, or decide to take up the case, a vote of at least four justices is necessary. The Supreme Court will likely schedule the petition for review at a conference after justices return from break this fall to determine whether to take up the case.

This article originally appeared in the Washington Blade and is made available in partnership with the National Gay Media Association.
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