Supreme Court accepts LGBT cases for review

An earlier version of this story included a typographical error in a quote attributed to J. Randall Coffey. The below version has been corrected.

In a long-anticipated move, the U.S. Supreme Court on Monday accepted certiorari on a trio of cases dealing with whether sexual and gender identity are protected under federal law, raising the prospect that employers may finally have clarity on this issue.

Earlier this year, the Supreme Court had turned away two of these cases that held such issues are covered under Title VII of the Civil Rights Act of 1964 and one that did not, raising questions among experts as to when or even if the high court would resolve the circuit split on the issue.

The cases are:

Melissa Zarda et al. v. Altitude Express, in which the 2nd U.S. Circuit Court of Appeals in New York decided in favor of Donald Zarda, a gay skydiver who sued his former employer, Calverton, New York-based Altitude Express, alleging he was fired from his job as a skydiving instructor because of his sexual orientation.

R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, in which the 6th Circuit in Cincinnati ruled in favor of a transgender worker who was fired when she told her funeral home employer she was undergoing a gender transition from male to female.

Gerald Lynn Bostock v. Clayton County, in which the 11th Circuit in Atlanta upheld a lower court decision and ruled against Mr. Bostock, a gay man who contended he was fired as a child welfare services coordinator for the Clayton County Juvenile Court system because of his sexual orientation.

“I think they took the case because the lower courts have continued to struggle with this issue, and there’s clearly a split in authority across the various circuit courts of appeal, creating a patchwork effect of different applications of the same law across the country,” said J. Randall Coffey, a partner with Fisher & Phillips LLP in Kansas City, Missouri.

“My own view is that the court likely will hold that Title VII doesn't cover sexual orientation and gender identity, that it’s something that Congress needs to do,” although it will be a close decision, Mr. Coffey said.

Paul E. Starkman, a member of law firm Clark Hill PLC in Chicago, said he believes the court is more likely to rule that sexual orientation is covered under Title VII, than are transgendered individuals, “just because the case law on sexual stereotyping seems to extend more easily to sexual orientation issues vs. transgender transformation issues.”

“They may split the baby, so to speak,” Mr. Starkman said.

The Supreme Court held in its 1989 ruling in Price Waterhouse v. Hopkins that a plaintiff can rely on gender-stereotyping evidence to show that discrimination occurred.