Bostock may not fully recognize gender identity, lawyers say

To extend discrimination protections to LGBTQ employees, the U.S. Supreme Court's landmark opinion on Title VII relied on a line of reasoning that falls short of recognizing the gender identities of transgender people, attorneys say.

Last week's opinion asserted it is impossible for an employer to discriminate against an employee for being gay, lesbian, bisexual, or transgender without taking their sex into account. Examples used by the court to illustrate how this rule applies involve a simple formula: Say there are two employees who are materially identical, except they are different sexes. If the employer fires one employee but not the other, the court said, the decision was clearly based on the fired employee's sex. Bostock v. Clayton County, Georgia, 2020 DJDAR 5681.

LGBTQ advocates say the rule applies awkwardly to transgender employees: Under its logic, if an employer fires a transgender woman, but retains a non-transgender woman who is otherwise identical, the employer's discrimination is based on the fact the women are two different sexes.

This distinction between the two women is necessary because it identifies the unique vulnerability of transgender people in the workplace, explained Sam M. Schwartz-Fenwick, a partner at Seyfarth Shaw LLP who leads the firm's LGBT Affinity Group. "Why is the court calling that plaintiff out as transgender? Why aren't they saying... she's a woman? It's because when a [non-transgender] woman is fired, that would raise a different issue," he said.

But this approach has drawn criticism from some transgender people who worry their gender identities are being discredited by such a distinction, attorneys say. These concerns highlight the fissure between the law and the expansive understanding of sex and gender that has developed within the LGBTQ community. The concerns also frame last week's landmark Title VII ruling as a stepping stone in a larger fight for equality, and draws attention to a piece of legislation that attorneys say would take the law closer to that goal: The federal Equality Act, which would amend civil rights bills concerning housing, employment, public accommodations, education, and other areas by explicitly adding gender identity and sexual orientation to their lists of protected classes.

"There's a difference between being protected as a subset of sex discrimination, and having the law recognize our reality in its own right," said Robert Bradley Sears, associate dean for public interest programs at UCLA School of Law, who has published studies and articles on discrimination against LGBTQ people in the workplace.

Jen Orthwein, a founding partner at Medina Orthwein LLP, agreed. "I think what is particularly and understandably upsetting to trans people is the reliance on this narrow definition of sex and the messiness created by trying to apply prior case precedent to trans people in a way that failed to 'see' us and recognize our authenticity and full humanity," Orthwein said in an email last week.

Like Schwartz-Fenwick, both Sears and Orthwein acknowledge the court's line of reasoning was shaped by the constraints of Title VII. The opinion, delivered by Justice Neil Gorsuch, largely relied on three Title VII cases as guiding precedent. None of them were Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which Orthwein said set forth the legal theory that "Title VII's prohibition on sex discrimination included discrimination based on gender stereotypes." Much of the case law supporting the inclusion of transgender people under the Civil Rights Act is based on Price Waterhouse, but Orthwein said its logic "does not flow very well to discrimination based on sexual orientation," the other characteristic last week's opinion extended protections to.

By using other cases to guide it, the high court was "able to apply the same test to both discrimination based on sexual orientation and gender identity because 'sex' in even its most narrow definition (biological distinctions between male and female) plays a necessary and undisguisable role in the discrimination of both gay and transgender people," Orthwein explained.

Orthwein said the court's reliance on these cases might account for its awkward definition of transgender people, but according to Schwartz-Fenwick, the court's analysis would have been the same even if it had relied on the sex stereotyping theory set out in Price Waterhouse. The court likely "felt like the but-for cause was ... simpler so they didn't need to go into sex stereotyping," he said.

Still, all three attorneys agreed last week's ruling made major strides for the LGBTQ community.

"There is no question that Justice Gorsuch's majority opinion will have a real impact on the real lives of tens of thousands of LGBTQ employees -- the result is very powerful," Sears said. "This is one very important way to provide workplace ... protections to LGBTQ people. It's not the only way, and the job is not done."

"Do we still need the Equality Act to fully protect the diversity of people? ... Yes, we very much still need to do that," Sears added.

A debate within the LGBTQ community has long circulated around whether it makes sense to push for amendments to Title VII so gender identity and sexual orientation are explicitly added to its list of protected characteristics, or whether it would be more productive to advocate for new legislation like the Equality Act. The House of Representatives passed the Equality Act in May 2019, but the bill was last blocked for consideration by the Senate last week.

Schwartz-Fenwick said the debate has changed because of last week's decision, since amending Title VII now "wouldn't change anything in light of Bostock," he said.

"I think the Equality Act goes much further because it's not limited to employment. It would cover housing, public accommodations, all sorts of other things that were in the Civil Rights Act of 1964 outside of just employment," he said. "I think that the pressure will certainly remain on Congress to ... pass the Equality Act, but whether or not that happens is anyone's guess."