The next landmark LGBT+ rights decision?

Will the Supreme Court accept another LGBT+ rights case? Jacquelyn Martin, AP.

by Rob Howard
Associate Editor

“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.” With that simple framing of the issue, Lambda Legal Defense Fund asked the Supreme Court of the United States to accept a case and answer that question.

A decision in the case could be the next landmark LGBT+ rights decision by the high court.

Jameka Evans. Lambda Legal photo.
Lambda Legal filed the “Writ of Certiorari” [a request for the court to take a case] on behalf of Jameka Evans in her lawsuit against the Georgia Regional Hospital. Evans claims the hospital was violating Title VII by discriminating against her because of her sexual orientation and her nonconformity with gender norms of appearance and demeanor, according to Lambda Legal.

Don Holladay, the lead attorney in Oklahoma’s marriage equality case, told The Gayly, “I think it’s going to be a case they will take.

“Right now, my impression is that the whole issue is in a mess. We have a conflict between the courts of appeals in different circuits on Title VII and sexual orientation. We have a couple of strong circuits that have said yes.”

The 11th Circuit court, citing a 1979 decision as precedent, ruled that Title VII does not prohibit discrimination based on sexual orientation. Lambda called the decision “from the Stone Age”, considering the changes in legal protections for LGBT+ people in the intervening 38 years, and vowed to appeal to the Supreme Court.

(See The Gayly’s coverage of Jameka Evans’ case at 11th Circuit Court ignores own ruling in refusing lesbian’s appeal.)

Citing numerous cases, including the Supreme Court’s decision in the Obergefell marriage equality case, Lambda wrote, “this Court has declared that discriminating against lesbian, gay, and bisexual people based on a ‘disapproval of their relationships’ ‘diminish[es] their personhood’ and ‘works a grave and continuing harm’ that must be remedied.” That language is from the Obergefell decision.

Earlier this year, the Seventh Circuit Court ruled that Title VII does prohibit discrimination based on sexual orientation, citing the logic of the Supreme Court’s own decisions on LGBT+ rights. (See The Gayly’s coverage of the Seventh Circuit ruling at Gay rights organizations hail court ruling as 'game changer'.)

“In real life, because we are a mobile society, somebody can be protected in Michigan, get promoted and be transferred to Mississippi, and be fired in Mississippi for being gay.  You can literally be protected on one side of the state line, and not on the other,” noted Holladay.

The Equal Employment Opportunity Commission (EEOC) ruled in 2015 that discrimination based on sexual orientation was prohibited by Title VII. (See EEOC: Landmark sex discrimination lawsuit settled.)

President Trump’s Department of Justice disagrees with the 7th Circuit’s and EEOC’s decisions, and says that Title VII does not prohibit discrimination based on sexual orientation.

Given the diversity of opinion on the subject, it appears likely that the Supreme Court will take the case. “It makes no sense to me that a person can have a protected constitutional right to marry the person of their choice, and yet the exercise of that constitutional right can cause them to lose their job,” concluded Holladay.

Long-time LGBT+ activist and attorney Mark Henricksen, talked with The Gayly about its chances if the case is heard. “This will probably hinge on Anthony Kennedy. Even with the advancement of Neil Gorsuch to the court, the same dynamic on the court that gave us marriage equality remains in place.

“There are four firm votes for LGBT equality,” he noted. “We wait to see how Kennedy will rule,” in each case.

In fact, of all the landmark LGBT+ rights decisions have been written by Kennedy, including among them Lawrence v. Texas which outlawed sodomy laws and marriage equality decisions in Windsorand Obergefell.

You can read the full Lambda Legal appeal here.

Copyright 2017 The Gayly – September 8, 2017 @ 12:25 p.m. CDT.