Three upcoming LGBT-Title VII cases will test the US Supreme Court's views on original intent, stare decisis, and statutory construction. These will be among the most important cases of the 2019-2020 term of the Court.
Title VII bars discrimination "because of … sex." How does that work with gay, lesbian and transgender employees? Courts are split. Badly split.
Zarda and Bostock claimed they were fired because they were gay. Their suits claimed violations of Title VII. The 2nd Circuit ruled that Zarda's suit could go to trial because discrimination based on sexual orientation is “is motivated, at least in part, by sex and is thus a subset of sex discrimination.” However, the 11th Circuit said Bostock could not go to trial because Title VII simply does not apply to sexual orientation discrimination.
The employees have two main arguments: (1) Men, but not women, are fired because they are sexually attracted to men. (2) Title VII forbids discriminating based on sex stereotypes – men should be sexually attracted to women and women should be attracted to men.
The employers argue that (1) Title VII prohibits treating one sex better than the other, which is not what happened here. (2) In 1964 nobody thought Title VII prohibited LGBT discrimination. (3) A change of the magnitude involved here should come from Congress rather than the courts.
The government sides with the employers.
In the Clayton County case, the employee presented and dressed as a man for years, but later announced an intent to live and work as a woman. The employer fired her. The 6th Circuit held in favor of the employee, saying "Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII." The arguments in this case parallel the arguments in the other two cases.
It's a matter of some interest that the transgender case was originally brought an won by the EEOC, but the current government is siding with the employer.
Gay discrimination is sex discrimination. This is similar to the "sex plus" cases we saw in the early days of Title VII. For example, you can't treat women with pre-school children differently than men with pre-school children. I think the analogy is apt.
Transgender discrimination is sex discrimination. My analogy is to a Catholic employee who decides to become a Baptist. That's religion discrimination, and you don't need to find another employee who is a Baptist switching to becoming a Catholic.