While we wait for the major decisions from this term over the next seven weeks, the Supreme Court has added three cases for next term (likely to be argued in the Fall and decided next Spring) involving sexual orientation and employment.  Two cases involve gay men who allege that they were terminated for being homosexual and one involves a transgender individual who alleges discrimination based on that status.  While at the lower court level, all three claimed, in part, that one of the factors in the employment decision was their failure to comply with gender stereotypes (i.e. they did not conform to the employer’s expectations for male behavior), that claim is only part of the Supreme Court case for the transgender individual.

These cases are going to be difficult for the employees to win, especially the two gay men.  Their claim is statutory, based on Title VII (of the Civil Rights Act of 1964 as amended) which bars discrimination in employment “because of sex.”  And the natural reading of “because of sex” is “because of gender.”  That is the way that the Supreme Court has always read the provision.  And, even today, many states and government agencies use “sex” when they mean gender (e.g., on driver’s licenses and application forms).  The arguments of the employees is hindered by the fact that their claim is statutory rather than constitutional.  Other than the most conservative justices, the justices are somewhat willing to apply constitutional texts and principles to new issues.  Put simply, a constitutional amendment is viewed as an extraordinary thing.  Thus, if a claim is similar enough to existing constitutional protections, courts will sometimes find that it fits under those protections. 

On the other hand, notwithstanding the current problems in Congress, courts tend to see statutory problems as something that the legislature could fix if the legislature wanted to fix the problems.  And Congress has failed to pass proposed legislation that would amend Title VII to include sexual orientation (or create Title VII-type protections against discrimination based on sexual orientation). 

In short, with the current conservative majority, it is unlikely that there are five justices willing to read “because of sex” as including “because of sexual orientation.  Thus, while — as a political matter — one would think that it is would be easier to extend protections to gays and lesbians, it is actually easier for a court — as a legal matter — to extend protections to transgender individuals because the discrimination against transgender individuals can be characterized as discriminating against their genders — not wanting to accept the preferred genders of such individuals and insisting on treating them as their birth gender when neither should be relevant to any employment decision.

Additionally, in the transgender case, both the questions as presented by the employer and as re-written by the Supreme Court recognize that the decision on the lower courts included the gender-stereotyping claim.  (The case involves a pre-operative transgender who made the decision to stop living as a man — the gender assigned at birth — and start living as a woman — the gender that she identified as part of the protocol for a potential gender-change operation.  The employer fired her because the employer identified the employee as a man and required the male employees to conform to certain “male”  behaviors, including dressing in regular suits.  As such, the employer refused to accept a male employee acting like a woman.)  While there was a “religious freedom” claim in the lower courts, that claim is not in the case at the Supreme Court (at least not for now).  It is possible that the Supreme Court will decide that the lower courts reached the right result on the gender-stereotyping claim and decline to reach whether discrimination based on gender identity is discrimination based on gender. 

As shown by the pleadings in the lower court in all three cases, protections against gender-stereotyping will give some benefit to gay, lesbian, and transgender employees.  Most employers do not want to openly state that they discriminate against anyone (even when they do) because appearing to be bigoted is bad for business.  And many of them will not understand that the reasons that they think are valid are actually gender-stereotypes.   But just as there are stereotypes of how men and women should act, there are also stereotypes of the feminine gay man and masculine lesbian and the typical behavior of transgender individuals.  Thus, not all gay, lesbian, and transgender employees will be able to successfully claim gender-stereotyping (as shown by the failure of the two gay employees in the pending case to prevail on those claims). 

Ultimately, the outcomes of these cases is likely to be a disappointment for activists.  However, elections do have consequences.  As we look forward to 2020, it is likely that people who support the general ideals of the Democratic Party will have different ideas on which of the approximately 20 presidential candidates are the best candidate to represent those ideals in the general election.  Likewise in various districts and states, there will be contested primaries.  What should be clear to all is that any Democratic nominee — either at the national or at the local level — will do more to advance the Democratic ideals than their Republican opponents.  We should have strong and vigorous debates over the next fifteen months over whom are candidates will be in November 2020.  At the end of those fifteen months, however, we need everybody on board for November 2020.  When Democrats vote for third parties because they are disappointed in the Democratic nominees, Republicans win.  When Republicans win, they get to fill the vacancies on the Supreme Court (with justices who are less than sympathetic to progressive interpretations of the law) and they get to block legislation designed to implement progressive ideals.  While some Democratic candidates may be trying to go too far, too fast, and others are unwilling to go fast enough or far enough, they are at least willing to do something to make life better rather than blocking any progress at all.  We have managed to get legislation adding “sexual orientation” to employment discrimination law at the state level.  To get that protection at the federal level, we will need to win elections.