The United States Supreme Court is going to be deciding two big Title VII cases (1) involving sexual orientation and (2) involving transgender status. The announcement was made on April 22, 2019.
The question in both cases is whether Title VII applies to these cases because Title VII talks about discrimination “because of sex.”
In the sexual orientation case — Altitude Express v. Zarda [briefs] — which is really a consolidation of two cases, we had two men who allege they were fired because they were gay. One of the lower courts said — Yes, that violates Title VII because sexual orientation discrimination is just a subset of sex discrimination. In the other case the court said — No, Title VII does not apply at all.
In the transgender case — R.G. & G.R. Harris Funeral Homes Inc. v. EEOC [briefs] — we have a funeral director who was working as a male and wanted to transition to becoming a female and wear women's clothes. And the boss said — No, we're going to fire you because wearing women's clothes would violate our dress code, and it would violate God's commandments.
These two big cases will be argued in the fall of 2019 and decided sometime in 2020.
I would urge the Court to make an analogy to discrimination "because of … religion." If an employer treats a Catholic married to a Jew differently than a Catholic married to a Catholic, it seems that would be discrimination "based on religion." If an employer treats a Catholic transitioning to becoming a Jew differently from a Catholic who remains a Catholic, it seems that would be discrimination "based on religion." What am I missing?