They are simply going to answer why or on what basis that discrimination is prohibited: transgender status or sex stereotyping
Gender Identity
The quick and dirty background of the case’s current status is that the plaintiff, Aimee Stephens, won in the Sixth Circuit Court of Oasis Active Log-in Appeals. Harris Funeral Homes then appealed to SCOTUS, asking it to review the decision and answer the following questions (bold added by me):
- Whether the word “sex” in Title VII’s prohibition on discrimination “because of . . . sex,” 42 U.S.C. 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964.
- Whether Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.
Petition GRANTED limited to the following question: Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).
The first thing I note is that SCOTUS removed the term “gender identity” from the scope of their review. To my reading, this is significant. Of course it doesn’t prohibit the parties from using the term “gender identity” in their briefs or referring to it many times during oral argument, which they all did. But SCOTUS has clearly indicated that “gender identity” is not part of the question they intend to answer; they took “gender identity” off the table.
The second thing I note is that the question SCOTUS intends to answer rests on an assumption that Title VII prohibits discrimination against transgender people.
Transgender Status
A ruling based on “transgender status” begs the questions of who qualifies for this status. Is a change of legal name required? Do you need surgery? Does identifying as non binary count? It’s a legal quagmire.
Harris argued that finding for Stephens on the basis of “transgender status” represents the insertion of a new and different characteristic than the one described in Title VII: sex. I find this outside-the-text argument very compelling.
If SCOTUS uses “transgender status” to find in Stephens’ favor, as the Sixth Circuit did, I believe it presents the worst case scenario from a feminist legal perspective. The reason I say this is we don’t know how the concept of “transgender status” would interact with traditional understandings of (biological) sex under Title VII’s anti discrimination protections. Would “transgender status” simply operate in addition to sex, as race and religion do? Or, as most commentators assume, would “transgender status” be positioned as the superior protected characteristic that can override the traditional meaning of sex in contexts that are harmful to women? In other words, in sex segregated spaces such as bathrooms and locker rooms. Indeed, “gender identity”-which, again, is not technically under SCOTUS’ scope of review-is often defined in existing state anti discrimination laws as having the legal power to override sex based classifications. The judicial establishment of a subclass of persons characterized as having “transgender status” generates uncertainty about both who qualifies for this special status and whether the status can be used as an exception to otherwise lawfully recognized sex based classifications.
Gender non-conformity
To make the matter of “transgender status” even more confusing, the Sixth Circuit’s opinion equated transgender status with gender non-conformity, explaining as follows:
“Thus, an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align. There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity and we see no reason to try.”
