Symposium: A trio of cases, a lot at stake

Loren AliKhan is the Solicitor General for the District of Columbia.

Next month, the Supreme Court will hear argument in three cases asking whether Title VII’s prohibition on sex discrimination includes discrimination on the basis of sexual orientation and gender identity. The answer to that question will have a considerable impact on the nation. A recent poll estimates that 4.5 percent of adults in the United States — or about 11.3 million people — are gay, lesbian, bisexual or transgender, so it’s like asking whether the population of the state of Ohio is protected by the federal employment discrimination laws.

Title VII, at base, prevents an employer from discriminating on the basis of a characteristic that has nothing to do with the employee’s job performance. Donald Zarda’s sexual orientation had no bearing on whether he was a good sky-diving instructor, just as Aimee Stephens’ gender has no impact on her embalming technique. Terminating either of them on the basis of prejudice rather than job skills was economically irrational, and it was also illegal. That is because their employers’ decisions were rooted in sex. Mr. Zarda would not have been terminated if he had been a woman who dated men, and Ms. Stevens would not have been terminated for living her life as a woman if her birth certificate identified her as female. Their employers’ actions, therefore, discriminated on the basis of sex, plain and simple.

My friends have already discussed the nuances of the question of statutory interpretation before the court in this trio of cases, and I want to explain why the answer to that question matters. As the amicus brief filed by 21 states and the District of Columbia details, 42 percent of gay, lesbian and bisexual individuals have faced employment discrimination based on their sexual orientation, and 90 percent of transgender individuals have experienced harassment or mistreatment on the job. Let me say that again: Nearly half of LGB people and nearly all transgender individuals face challenges in their jobs based on their sexual orientation or gender identity. That discrimination shows up in salaries, as gay and bisexual men earn 11 to 16 percent less than similarly qualified heterosexual men, and it affects the composition of the workforce, as the unemployment rate for transgender individuals is three times the national average. As a result of their inability to participate fully in the workforce, the LGBT population is more likely to experience economic hardship, including food insecurity and homelessness. That, in turn, increases the pressure on state benefits programs. As an example, New York incurred approximately $1,000,000 a year in additional Medicaid costs and nearly $6,000,000 a year in increased costs for homelessness services before it banned discrimination against transgender individuals. Discrimination, it turns out, is not only irrational but quite costly.

At present, 21 states and the District of Columbia expressly prohibit discrimination on the basis of sexual orientation and gender identity by statute or regulation, and a handful more provide some form of protection via agency interpretation or court ruling. For the other half of the country, however, Title VII is the only safeguard LGBT individuals have to protect their livelihood. For example, LGBT individuals in Alabama, Florida, Georgia and Indiana currently have no recourse against employment discrimination under their state laws but can maintain discrimination claims under Title VII based on rulings from their federal courts of appeals. Should the Supreme Court reach a different conclusion, millions of LGBT individuals will be left without any protection from discriminatory employers.

The stakes are high even in the states that prohibit discrimination on the basis of sexual orientation and gender identity, because Title VII serves as an important counterpart to these state laws. As the states’ amicus brief explains, states rely on the Equal Employment Opportunity Commission’s broad authority to investigate charges of discrimination, especially against companies that do business across states lines. The EEOC has achieved tremendous success in this area, entering into consent decrees with several well-known, nationwide companies to cease discriminatory practices against LGBT individuals. States also partner with the EEOC in investigations and enforcement actions, and they have work-sharing agreements that allow both state and federal authorities to realize efficiencies in processing discrimination claims. Losing the EEOC as a thought partner would put states at a significant disadvantage in enforcing their own antidiscrimination laws.

Although the focus of October’s oral arguments will be on the text of Title VII, court watchers cannot, and should not, disregard the profound implications these cases will have for our LGBT family, friends and colleagues.