Could it be that federal law prohibits firing LGBT people because they do not conform to gender expectations but does not prohibit firing them just because they are lesbian, gay, bisexual, or transgender?

That is the question Lambda Legal posed this month in a petition to the U.S. Supreme Court. Lambda is asking the high court to rule that an existing federal law prohibits employers from discriminating against employees based on sexual orientation.

If the court takes the case, the outcome –no matter what it is– would likely have profound implications for LGBT people in employment, education, housing, and other arenas. And if victorious, the Lambda case could also achieve a legislative goal that has been priority for the national LGBT civil rights movement more than 40 years.

The case, Evans v. Georgia Regional, is one of several cases around the country brought by LGBT people who have been fired because of their sexual orientation. This is the first to reach the Supreme Court.

Before the Supreme Court can hear Lambda’s appeal, at least four of the nine justices will have to agree to review the lower court opinion. If four do not agree to hear the case, the lower court ruling will stand.

That lower court ruling came from the Eleventh Circuit U.S. Court of Appeals, which covers Georgia, Florida, and Alabama.

A three-judge panel of that circuit ruled that Title VII of the Civil Rights Act does not prohibit discrimination based on sexual orientation. The full Eleventh Circuit declined to hear Lambda’s appeal to review the panel decision. And, thus, Lambda’s remaining option was to appeal to the U.S. Supreme Court.

Jameka Evans was a security guard at the Georgia Regional Hospital in Savannah for about a year and, though she never told her employer she was gay, her physical appearance and dress made it “evident that she identified with the male gender,” said the appeals panel. Lambda’s petition notes she was subjected to a hostile work environment and forced to leave for “failing to carry herself in a ‘traditional woman[ly] manner.’”

Evans filed a complaint with the court, saying her treatment at work amounted to a violation of Title VII of the federal Civil Rights Act, which prohibits discrimination based on sex. “Sex” has been interpreted by the U.S. Supreme Court (Pricewaterhouse v. Hopkins, 1989) to include discrimination based on gender stereotyping.

But a magistrate judge ruled that Evans’ complaint amounted to sexual orientation discrimination and said such discrimination is not covered by Title VII. The judge said that discrimination based on gender non-conformity is “just another way to claim discrimination based on sexual orientation.” He dismissed her case.

The district court appointed Lambda Legal to represent Evans on appeal, and the U.S. Equal Employment Opportunity Commission (EEOC) filed a brief on her behalf. EEOC said that discrimination based on sexual orientation “fall[s] squarely within Title VII’s prohibition against discrimination based on sex.”

The district court ultimately ruled that Evans failed to provide sufficient evidence to sustain the claim that “her decision to present herself in a masculine manner led to the alleged adverse employment actions.” But it said Evans had a right to amend her complaint to remedy that weakness.

Walking a thin line

The Eleventh Circuit panel noted that, in a 2011 case (Glenn v. Brumby), it held that discrimination against a transgender person for gender non-conformity did constitute sex discrimination. It said the lower court erred in dismissing the gender non-conformity argument as “just another way to claim discrimination based on sexual orientation.” It sent that claim back to the district court for rehearing.

But in doing so, the Eleventh Circuit panel dismissed Evans’ argument that discrimination on the basis of sexual orientation is covered by Title VII, saying that previous decisions by the circuit made clear that “[d]ischarge for homosexuality is not prohibited by Title VII.”

In other words, Title VII prohibits firing a person for looking or acting lesbian, gay, bisexual, or transgender; but it does not prohibit firing them if they acknowledge being LGBT.

“Forcing all sexual orientation discrimination claims into a sex stereotyping pigeonhole,” said Lambda’s petition to the high court, “‘creates an uncomfortable result in which the more visibly and stereotypically gay or lesbian a plaintiff is in mannerisms, appearance, and behavior, and the more the plaintiff exhibits those behaviors and mannerisms at work, the more likely a court is to recognize a claim of gender non-conformity which will be cognizable under Title VII as sex discrimination.’”

In its September 7 petition to the Supreme Court, Lambda notes that “almost all” of the other federal circuits and two federal agencies differ on the issue of whether discrimination based on “sexual orientation” constitutes discrimination based on “sex.” And such conflicts often compel the Supreme Court to resolve an issue.

In April, the Seventh Circuit, which covers the states of Illinois, Indiana, and Wisconsin, ruled that Title VII does cover sexual orientation. That case is Hively v. Ivy Tech. Later this month, the full Second Circuit (covering New York, Connecticut, and Vermont) will consider the issue through another Lambda case, Zarda v. Altitude Express. In that case, U.S. Attorney Jeff Sessions has submitted a brief arguing (unlike the EEOC) that the Department of Justice does not believe Title VII prohibits sexual orientation discrimination.

“The current geographic checkerboard of Title VII’s coverage is untenable for employees and employers alike,” states Lambda’s petition. “….[A]t present, a lesbian or bisexual employee working in Indianapolis, Indiana, who is offered a promotion that will require her to relocate to Indianola, Mississippi, is forced to choose between Title VII protection and advancing her career. Furthermore, lesbian, gay, and bisexual employees who are entitled to insurance and other forms of employment benefits for their spouses might be wary of telling their employers about their marital status, for fear of revealing their sexual orientation and subjecting themselves to termination on that basis.”

Jon Davidson, Lambda’s national legal director, says how the Supreme Court resolves the issue is likely to have an impact on how courts interpret the meaning of discrimination based on “sex” in other federal laws, such as Title IX of the Education Amendments Act.

“I believe that, if the Supreme Court ultimately agrees that the ban on sex discrimination under Title VII includes a ban on sexual orientation discrimination, the decision will control other federal laws barring sex discrimination, including Title IX (which governs discrimination in federally-funded educational programs), the Fair Housing Act, the Equal Pay Act, section 1557 of the Affordable Care Act (which bars discrimination in health care and health care insurance), and the Equal Credit Opportunity Act.  That is because the arguments we are advancing are not particular to any particular statute,” said Davidson, “but rather are about the logical connection between sexual orientation discrimination and sex discrimination, which applies equally to all of those laws.”

Joining Lambda staff on the petition to the Supreme Court are two national legal luminaries from Stanford University: Jeffrey Fisher, who has been identified as having the third most experience arguing before the Supreme Court (out of 17,000 advocates) and Pamela Karlan, an openly gay litigator who has often been said to be on the “short list” of some Democratic presidents as a potential Supreme Court nominee.

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