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Supreme Court: What Does Discrimination 'Because Of Sex' Include?

On Monday, the U.S. Supreme Court agreed to hear three cases about whether our nation's main civil rights law bars discrimination based on sexual orientation or gender identity. Title VII of the Civil Rights Act of 1964 prohibits discrimination "because of sex," as well as race, color, national origin and religion.

The federal circuits have split over whether the phrase "because of sex" includes sexual orientation and gender identity. The Second and Sixth Circuits considered the phrase to encompass all aspects of a person's gender, including nonconformity with gender norms. As a result, they ruled, respectively, that homosexuality and transgender status are inextricably related to the overall concept of sex and thus are protected by Title VII.

The Eleventh Circuit disagreed. Relying on a 39-year-old circuit precedent, it stated simply that "discharge for homosexuality is not prohibited by Title VII."

Now, the Supreme Court will take up the three cases and attempt to sort out the differences between the circuits.

Decision may depend on a reading of Price Waterhouse v. Hopkins

The case from the Sixth Circuit involved a funeral home employee who, after transitioning from male to female, was fired for refusing to wear male clothing to correspond with her birth gender.

"It is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex," the Sixth Circuit ruled. "Discrimination 'because of sex' inherently includes discrimination against employees because of a change in their sex."

In its ruling, the Sixth Circuit relied on a Supreme Court case known as Price Waterhouse v. Hopkins. That case held that it is unlawful under Title VII to make employment decisions based on sex stereotypes or assumptions about how each gender should dress and behave. Price Waterhouse had denied a woman partnership because some partners at the firm felt she needed to act, talk and dress more femininely.

In Price Waterhouse, the Supreme Court explained that the phrase, "because of sex" includes the "entire spectrum of disparate treatment of men and women resulting from sex stereotypes."

The Equal Employment Opportunity Commission's position is that "because of sex" does encompass sexual orientation and gender identity, including these individuals under the umbrella of gender as a protected category in federal employment law.

However, the Justice Department and the U.S. Solicitor General appear ready to argue that the Second and Sixth Circuits misconstrued Title VII's text and the Supreme Court's precedents in this area of law.

Do you think discrimination based on sexual orientation or nonconforming gender identity are logically linked to our understanding of gender itself?

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