Lisa Keen | Keen News Service

Three big LGBT cases will be part of a private discussion at the U.S. Supreme Court on Friday, Nov. 30, when the justices meet to “conference” about what appeals to hear in the coming months.

All three cases test the limits of Title VII of the Civil Rights Act, which prohibits discrimination based on “sex.” Two of the three ask whether “sex” should be read to also prohibit discrimination based on sexual orientation. The third asks whether it should be read to prohibit discrimination based on gender identity or “transgender status.”

At least four justices must vote to accept an appeal before the court will schedule the case for argument.

The likelihood of the court taking one of these cases is fairly strong, primarily because there is a conflict among several circuit courts as to whether Title VII can be read to include sexual orientation and/or gender identity discrimination. But with the newly-constituted Supreme Court having a much more conservative slant, it is probably more likely that — if four justices want to hear an appeal — they will be seeking an opportunity to narrow the protective reach of Title VII rather than expand it to LGBT people.

In that regard, the justices are more likely to take a case brought by an employer. Those include:

Harris Funeral v. EEOC (from the Sixth Circuit): This appeal comes from an employer in Michigan and asks whether “gender identity” or “transgender status” are covered under “sex” discrimination in Title VII. The employer, Harris Funeral, fired a long-time male employee after he began transitioning to female and refused to wear a man’s business suit supplied by the funeral home. The employee, Aimee Stephens, first took her complaint to the Equal Employment Opportunity Commission, which ruled in her favor. The Sixth Circuit said “sex” discrimination in Title VII includes “transgender” discrimination. On appeal to the Supreme Court, the funeral home argues that its dress code applied equally to men and women, and that the courts do not have the authority to say that “sex” includes “gender identity.” The reason the word “sex” was added to Title VII, says the funeral home, was to ensure “equal opportunities for women.” This case may be the most attractive to the conservative justices because they could deny protections to transgender employees and all LGBT people by simply claiming the lower courts have no authority to expand the definition of “sex” in federal law. The Sixth Circuit includes Michigan, Kentucky, Ohio and Tennessee.

Altitude Express v. Zarda (from the Second Circuit): This appeal comes from an employer in New York, challenging a Second Circuit ruling that Title VII does cover discrimination because of sexual orientation. The case involves a recreational parachuting company, Altitude Express, that fired one of its trainers, David Zarda, after learning he was gay. Zarda died before his lawsuit could be resolved, but his sister has pursued his claim. The Second Circuit covers New York, Connecticut and Vermont.

The third case before the Supreme Court conference this month is one brought by a gay employee who lost at the lower level:

Bostock v. Clayton County (from the 11th circuit): This appeal comes from a gay man in Georgia, challenging an 11th circuit decision to dismiss his Title VII lawsuit. Gerald Bostock was a child advocate employee of the Clayton County Juvenile Court System for 10 years, and all was fine. Then, in 2013, he joined the Hotlanta gay softball league and urged other players to consider volunteering for the county agency. Within six months, his office was audited, someone publicly complained about his playing in the gay softball league, and he was fired. The county said he was fired for “conduct unbecoming a county employee;” Bostock said he was fired because he is gay. Bostock filed suit, saying his firing violated Title VII. The 11th circuit (which covers Georgia, Florida, and Alabama) dismissed the lawsuit, saying it had already ruled that “sexual orientation” discrimination is not covered under Title VII. At the Supreme Court, Bostock’s attorney acknowledges that the 11th Circuit has previously ruled that “sexual orientation” cannot be read into “sex” discrimination, but he argues that other circuits have ruled it can. He also argues that the Supreme Court’s 1989 ruling in Price Waterhouse v. Hopkins requires courts to read “sex” discrimination to include gender-based stereotypes. And he argues that the 1998 Supreme Court decision in Oncale v. Sundower underscored that “sex” discrimination had to be read more broadly.

The 11th circuit ruled as recently as last year that Title VII does not prohibit sexual orientation discrimination. The employee in that case, Evans v. Georgia Regional, appealed to the Supreme Court but the court simply refused to accept the appeal for review.

The Seventh Circuit U.S. Court of Appeals ruled in favor of sexual orientation discrimination (Hively v. Ivy Tech), but the employer did not appeal to the Supreme Court. So, LGBT people in Seventh Circuit states (Illinois, Indiana, Wisconsin) can press a Title VII claim, as can those in the Second Circuit and Sixth Circuit.

But LGBT people in the 11th circuit cannot.

Meanwhile, similar cases in other circuits are percolating up, putting pressure on the Supreme Court to settle the dispute nationally.

The court could announce as early as Monday, Dec. 3, whether it will — or won’t —hear any or all of the appeals. It could, and often does, re-list some cases for conference at a later date.

Two of the three cases were originally scheduled for September but were rescheduled after the third case was given more time (until Oct. 24) to file briefs. Now, all three are on the conference list.

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