WASHINGTON (Legal Newsline) – Seemingly at odds with some recent activities by the federal Department of Justice, federal appeals courts in various parts of the country seem poised to take a new look at various kinds of gender and gender-identity discrimination.
Recent reports show rulings from the Sixth, Seventh and Second circuit courts of appeal seem to signal a changing course when considering employment discrimination against gay, lesbian, bisexual and transgender individuals.
An April 2017 decision in the Seventh Circuit recognized Title VII protections for an Indiana professor in Hively v. Ivy-Tech Community College of Indiana. More recently, in the Sixth Circuit, a court held that Title VII protections include protections for transgendered persons in the case of EEOC v. R.G. & G.R. Harris Funeral Homes Inc.
All of this new activity suggests that many courts may be amenable to clarifying whether Equal Employment Opportunity Commission protections extend to transgender individuals.
In talking about some of these changes, Monte Grix from the law offices of Hirschfeld Kraemer in Los Angeles, told Legal Newsline that some of the courts are involved in revising some of their prior views about employment discrimination.
“They’re recalculating,” Grix said.
In his own state, Grix said, these protections have been the norm for a while.
“There's no question in California,” he said. “It's not even something that comes up.”
However, he said, 19 states have their own discrimination laws and others rely on federal standards.
He said in the past, courts were willing to reject protections for transgender individuals based on a reading of original congressional intent. Now, he said, there's more of a willingness to consider that in the time when prior laws were made, some of the social issues around gender identity were not as prominent as they are now.
“They weren't even thinking about gay people,” Grix said of the legal experts of yesteryear. “It wasn't even on the radar.”
Now, he suggested, the trend is to say that what matters is the letter of the law.
As for legal clarification, Grix said the issue will likely make its way up to the U.S. Supreme Court – though he said when and how this could happen is unclear.
“In a nutshell, this will probably work its way up to the Supreme Court,” Grix said. “When you have conflicting decisions, eventually the Supreme Court often takes up the case.”
Grix also cited administrative changes in the executive arm of government that may have an influence on the courts, although, he noted, the tradition is for courts to be entirely independent.
“You have a clear conflict,” Grix said, citing a Department of Justice and Department of Education memo released in February that suggested sexual orientation and transgender status are not protected under Title VII.