The Meaning of 'Sex'<br><i><font size="-1">LGBTQ Rights Under the Legal Microsope</i><br><i>Part Two of a Two-Part Article</font></i>

It is against this backdrop that the Supreme Court's decision in the Gloucester case takes on critical importance, and will provide the most obvious guidepost for where the courts are headed on this important legal issue. Gloucester is more than a bathroom access case. In order to determine whether the DOE could properly compel the Gloucester County School Board to permit restroom access based upon sexual identity or transgender status, the Supreme Court will necessarily have to determine whether the term “sex” under a federal anti-discrimination law extends to the LGBTQ community.

Thus, the term “sex” is likely to be analyzed under all theories promulgated, including the theory put forth by the EEOC in Scott Medical and Pallet Companies that, by definition, “sex” is inclusive of sexual orientation and transgender status. Neither Title VII, the workplace, nor the employer-employee relationship is involved in the Gloucester case. Yet, it is likely to be the case that will have the single most important impact on LGBTQ workplace rights in 2017.

What Can and Should Employers Do?

With the Supreme Court's 2015 decision in Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015), which rejected the constitutionality of laws banning same-sex marriage, it seemed inevitable that at some point in the not-too-distant future, federal employment anti-discrimination law would expand to include the LGBTQ community. The inevitability of expansion may have changed in the current political climate, however, so what is an employer to do in the midst of this evolving but uncertain landscape?

• Be sure to consider your state and local laws. Sexual orientation, gender identity, and/or transgender status are protected categories for employees working in the private sector under 22 state laws, several county or local equivalents, and some state Executive Orders. Depending on where your business is located, these laws might create an express prohibition against such types of employment discrimination, regardless of any volatility at the federal level. See http://www.hrc.org/state_maps;
• Even if operating your business in states or localities without LGBTQ protections, develop policies and procedures to address LGBTQ discrimination in the workplace. Sexual stereotyping is an accepted legal theory, and there is a fine, sometimes imperceptible line between sex discrimination and sex stereotyping;
• Consult counsel or Human Resources professionals regularly for the latest developments in this area, either at the federal, state, or local level;
• Given the constantly evolving, and often ambiguous nature of the law regarding sexual orientation discrimination, employers should err on the side of caution and commit resources to proper protocols and employee training.

Conclusion

Employment lawyers and other workplace professionals will be paying close attention this spring waiting for the Supreme Court's decision in this important and, perhaps, transformative case. It is unlikely that the Court will come right out and state that “sex” under Title VII includes the LGBTQ community, given the Supreme Court's penchant for narrow rulings and limited interpretation. What is more likely is a decision that will continue to fuel the debate over LGBTQ workplace rights, and possibly provide more clarity as to whether it is the judicial or legislative branch that will fully address the meaning of “sex” under Title VII.

***** Christopher A. D'Angelo is a Partner with Michelman & Robinson, LLP's New York City office, and represents management in employment law disputes, including litigation. The assistance of Jonathan Goeringer, an associate at the firm, in preparing this article is greatly appreciated.