Date: November 13, 2019

On October 8, 2019, the United States Supreme Court heard arguments concerning whether Title VII of the Civil Rights Act, which includes, among other things, discrimination based upon sex, also covers discrimination based on gender identity and sexual orientation. These cases raise the most important issues for the LGBTQ community since the Supreme Court legalized gay marriage in 2015.

The first case, R.G.& G.R. Harris Funeral Homes, Inc. v. EEOC, concerns an employee who was fired because her employer allegedly disapproved that she is transgender. The other cases, Altitude Express, Inc. v. Zarda, and Bostock v. Clayton County, involve gay men who allege they were fired because of their sexual orientation. A decision against these workers could affect not just employment but healthcare, housing and education. Until now, plaintiffs have argued that these types of cases were a form of sex stereotypes and come within Title VII. However, that statute generally deals with sex discrimination, how one sex is treated as compared to the other. In the transgender case, the Trump administration is asking the Supreme Court to find that employers can discriminate based on sex stereotypes as long as they treat both sexes the same.

While these important cases could have a tremendous impact on LGBTQ workers’ rights, they will not have much impact in New Jersey considering the comparable state statute, the New Jersey Law Against Discrimination, already protects workers based upon their gender identity or expression, and affectional or sexual orientation.