Lower Court Split Means Supreme Court Could Rule On Rights Of Gay And Transgender Employees 


November 5, 2018

According to a Supreme Court brief filed by the U.S. Department of Justice (DOJ), federal law allows employers in the United States to purposefully discriminate against employees based on their gender identity. In other words, in the view of the United States government, an employer can fire, suspend, or otherwise punish employees for not conforming to gender norms.

In the case now before the Supreme Court, a funeral home fired an employee who identified as female for breaking a rule that required male employees to wear suits at work. Endorsing employers’ right to discriminate against transgender workers, the DOJ has reversed the position it took earlier in the same case when it argued before the Cincinnati-based Sixth Circuit Court of Appeals that Title VII does prohibit discrimination against employees based on gender identity. The Court of Appeals ultimately ruled that Title VII does ban discrimination against transgender people (EEOC v. R.G. & G.R. Harris Funeral Homes).

On the DOJ’s side is one federal Court of Appeals, the Denver-based Tenth Circuit, which ruled in 2007 that Title VII does not prohibit discrimination based on gender identity.

The Supreme Court now has the opportunity to take up the Sixth Circuit case, resolve the split between the Sixth and Tenth Circuits and determine whether federal law permits discrimination against transgender employees.

The Supreme Court also has the opportunity this term to consider whether federal antidiscrimination laws protect gay employees from discrimination, as two cases presenting this issue are currently on appeal to the high court. Two Courts of Appeals, the Chicago-based Seventh Circuit and the New York-based Second Circuit, have recently ruled that discrimination against gay employees is unlawful sex discrimination. The Atlanta-based Eleventh Circuit Court of Appeals earlier reached an opposite conclusion, setting the stage for the Supreme Court to decide the issue conclusively.

With these novel legal issues cued up for possible Supreme Court decisions, we may soon see how President Trump’s appointment of Justice Neal Gorsuch and Justice Brett Kavanaugh will affect Supreme Court jurisprudence in the employment discrimination arena.

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Jake Rubinstein



(720) 479-3872

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For more information on the topics discussed in this Alert, please contact Jake Rubinstein at (720) 479-3872 or jrubinstein@cozen.com.