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Is discrimination on the basis of sexual orientation or gender identity sex discrimination?

October 7, 2019

The Supreme Court is set to hear three cases this term to decide whether Title VII’s protections against sex discrimination include discrimination based on sexual orientation or gender identity.

Title VII of the Civil Rights Act of 1964 prohibits discrimination “against any individual … because of such individual’s … sex.” Does that language include discrimination based on sexual orientation or gender identity?

Until 2012, the general understanding in the legal community was that sex referred only to biological sex—in other words, whether a person is male or female. However in 2012 the federal employment agency recognized a broader view and a number of courts have followed.

In 2012, the EEOC held in Macy v. Department of Justice, that discrimination based on gender identity is sex discrimination. The Commission reached this conclusion by finding that gender identity discrimination may involve sex stereotyping, that a “real” woman should be born with certain reproductive organs, and that is a form of prohibited discrimination.

Three years later, the Commission held in Baldwin v. Department of Transportation that sexual orientation discrimination is a form of sex discrimination. 

Check out our infographic report on the three cases before the Court this term. Contributor Meghan Droste explains the relevant terms, the precedent, and the arguments on either side.


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