In a friend-of-the-court brief, GLAD, NCLR and other LGBTQ equality organizations make the case that rolling back the understanding that discrimination against LGBTQ workers is discrimination “because of sex” would create an unworkable rule for courts, employers, and employees alike:

Creating an exclusion where none exists in the statute is not a proper way to interpret Title VII—and it is one this Court has already repudiated in bringing consistency to Title VII’s application.

  • Brief of amici curiae GLBTQ Legal Advocates & Defenders, National Center for Lesbian Rights, Et Al

(Washington D.C., July 3, 2019) ­–GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights (NCLR), in partnership with Wilmer Cutler Pickering Hale and Dorr LLP, have filed a friend-of-the-court brief supporting employees in three cases before the U.S. Supreme Court regarding the application of Title VII’s prohibition on sex discrimination to lesbian, gay, bisexual, and transgender workers.

Filed on behalf of multiple LGBTQ equality organizations, the brief highlights the common sense understanding that LGBTQ status discrimination is discrimination because of sex, and details how courts have struggled in the past when forced to seek distinctions between evidence of discrimination relating to sexual orientation and evidence relating to sex. The only logical and workable outcome, the brief argues, is for the Court to affirm that:

Title VII prohibits all sex-based discrimination, including discrimination based on a person’s attraction to, or romantic interest in, people of the same sex, or an employer’s expectations about how men and women should look and behave,”

and that to do otherwise would:

“subject factually similar claims to arbitrarily inconsistent results and… exclude lesbian, gay and bisexual plaintiffs from protection based on facts that would be actionable… if brought by heterosexual plaintiffs.”  

“There is simply no logical way to understand discrimination against a gay, lesbian or bisexual employee that does not relate to that person’s sex,” said Mary L. Bonauto, GLAD Civil Rights Project Director. “A straightforward reading of Title VII, along with existing Supreme Court precedent affirming prohibitions against sex stereotyping and same-sex harassment in the workplace point in only one direction – that lesbian, gay, and bisexual workers are protected under Title VII.”

In the case of transgender employees, for two decades courts have with near unanimity recognized the impossibility of understanding discrimination against transgender individuals as distinct from discrimination based on sex, and the brief urges the court not to discard the straightforward logic of those past rulings by attempting to draw an arbitrary line now that would only create confusion where it doesn’t exist:

The value of avoiding such arbitrary line-drawing is readily apparent from the Title VII claims brought by transgender plaintiffs, which, as the lower courts have generally appreciated, cannot be coherently disentangled from discrimination because of sex.

“The right to earn a living to support yourself and your family is essential, and no one should fear being fired because of who they are,” said Christopher F. Stoll, NCLR Senior Staff Attorney. “Courts and federal agencies have made clear for decades that discrimination against transgender employees is unlawful. To roll that back would not only upend the consensus understanding of Title VII, it would leave an already vulnerable population at risk for greater discrimination.”

The brief was submitted in three cases the Supreme Court will consider together on October 8, 2019: Altitude Express v. Zarda, Clayton County GA v. Bostock, and Harris Funeral Homes v. Stephens.

In addition to GLAD and NCLR, organizations represented on the brief include Advocates for Youth, the Disciples LGBTQ+ Alliance, Equality Arizona, Equality California, Equality Federation, Equality North Carolina, Equality Ohio, Equality Utah, FORGE, Inc., Freedom for All Americans, Mazzoni Center, Movement Advancement Project, National Equality Action Team, the National Organization of Gay and Lesbian Scientists and Technical Professionals, Inc., One Colorado, Out & Equal Workplace Advocates, and Silver State Equality.

All amicus briefs filed in support of the employees will be available here.