The Legal Aid Society and Goodwin Procter LLP filed an amicus brief in the United States Supreme Court in support of the position that the prohibition on sex discrimination contained in Title VII of the Civil Rights Act of 1964 precludes employer discrimination based on transgendered status and sexual orientation.
The amicus brief argues that discrimination on the basis of transgender status and sexual orientation is discrimination based on sex stereotypes, which the Supreme Court has already held violates Title VII. At the heart of the argument is the fact that an employer’s imposition or enforcement of any normative gender expression or sexual orientation on an individual means that the employer is punishing the individual for not conforming to sex stereotypes. If an employer’s decision-making is based on their perception that an employee is not adequately performing, through appearance or behavior, the sex that was assigned to them at birth, it is blatantly discriminating against the employee based on their failure to comply with sex stereotypes.
“As institutional legal providers for low-income individuals and families in New York City, we see thousands of LGBTQ+ clients who have suffered years of abuse and discrimination based on gender policing practices by employers and others,” said Richard Blum, Staff Attorney in the Employment Law Unit at The Legal Aid Society. “This gender policing is inextricable from sex-based discrimination, and the Court should affirm this critical precedent which will have a far-reaching impact on all LGBTQ+ Americans, particularly those from communities of color.”
“The brief that Legal Aid and Goodwin filed provides the Supreme Court with a compelling combination of real world examples (based on the experiences of Legal Aid’s LGBTQ+ clients), social science research, and legal analysis to assist in its review of Title VII sex discrimination cases,” said Frederick Rein, Of Counsel at Goodwin.
The three cases on petition that have been consolidated in the Supreme Court are: Altitude Express, Inc. v Zarda (2d Cir. 2018), in which a skydiving instructor was fired after his employer learned his sexual orientation; Bostock v. Clayton County, Georgia (11th Cir. 2018), in which a gay employee in the county's child welfare service program was fired for his sexual orientation; and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (6th Cir. 2018), in which a Michigan funeral home employee was fired when she informed her employer she was transgender.