Civil and Human Rights

Bostock v. Clayton County; Altitude Express v. Zarda; and R.G. & G.R. Harris Funeral Homes v. EEOC

In three cases, Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC, the Supreme Court is considering whether Title VII—the federal law that prohibits employment discrimination “because of … sex”—prohibits discrimination against individuals because of their sexual orientation or transgender status.

Case Summary

In Bostock v. Clayton County, petitioner Gerald Lynn Bostock filed a pro se lawsuit alleging that his former employer, Clayton County, Georgia, fired him because of his sexual orientation and therefore violated Title VII’s prohibition against discrimination “because of … sex.”  The district court dismissed his lawsuit on the ground that Title VII does not prohibit discrimination based on sexual orientation, and the Eleventh Circuit affirmed.  Similarly, in Altitude Express v. Zarda, petitioner Donald Zarda filed suit under Title VII against his former employer, Altitude Express, alleging that he was fired because he did not conform to gender stereotypes due to his sexual orientation.  The district court granted summary judgment for the employer, and the Second Circuit affirmed.  And in R.G. & G.R. Harris Funeral Homes v. EEOC, the Equal Employment Opportunity Commission filed suit against Aimee Stephens’s former employer, petitioner R.G. & G.R. Harris Funeral Homes, on the ground that the employer violated Title VII by firing Stephens because she is transgender.  The district court granted summary judgment for the employer, but the Sixth Circuit reversed, holding that the employer had violated Title VII.  Petitioners in these cases filed separate petitions for writs of certiorari with the Supreme Court, and on April 22, the Court granted review.

CAC, along with Rutgers Law School professor Katie Eyer, filed a brief on behalf of statutory interpretation and equality law scholars as amici curiae in support of the employees.  Our brief makes three main points.  First, we argue that Title VII’s text prohibiting employment discrimination “because of … sex” plainly covers discrimination based on sexual orientation or transgender status.  When an employer fires a woman because she is attracted to women, for instance, but not a man who is attracted to women, that action is necessarily “because of … sex” even under the narrowest definition of “sex” that existed in 1964 when Title VII was enacted.  Likewise, when an employer fires a transgender woman for identifying and presenting as a woman, that action is necessarily “because of … sex” because the employer would not have fired her for identifying and presenting as a woman if she were a “biological woman.”  This plain textual analysis should resolve this case.  Second, we argue that it does not matter whether Congress or the public would have expected Title VII to cover discrimination based on sexual orientation or gender identity at the time the law was passed.  The Court has consistently held that an application of a particular statute is covered if it falls within the reach of the statute’s plain text, even if Congress or the public did not anticipate that application.  Finally, we argue that actions of subsequent legislatures cannot trump the plain meaning of Title VII’s text.

Case Timeline