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LGBT Law Forum hosts panel to discuss Supreme Court case

| Wednesday, October 16, 2019

On Tuesday afternoon, the Notre Dame LGBT Law Forum hosted a panel in the McCartan Courtroom of the Law School to discuss the current case in front of the Supreme Court of the United States. Three panelists discussed whether or not Title VII of the Civil Rights Act of 1964 provides protection for transgender individuals and the greater LGBT community from workplace discrimination.

Jackson Oxler | The Observer
A panel hosted by the LGBT Law Forum discussed Title VII protections against discrimination in the workplace Tuesday in McCartan Courtroom.

The three members of the panel included Kim Hively, the named plaintiff in the Hively v. Ivy Tech case, Steve Sanders, a professor at the Indiana University Maurer School of Law who has been involved in many key cases relating to LGBT rights, and Eduardo Juarez, a trial attorney for the Equal Employment Opportunity Commission (EEOC).

Title VII states that one cannot discriminate in employment based on “race, color, religion, sex or national origin.” The Supreme Court is currently hearing case R.G. & G.R. Harris Funeral Homes v. EEOC & Aimee Stephens and must decide if the discrimination on sex covers gender identification.

Juarez began the discussion by providing an in-depth overview of past legal cases related to Title VII and how these cases relate to today. Among these was the case Price Waterhouse v. Hopkins, in which a female employee was denied partnership and was then told she did not dress, act or talk femininely. She won her discrimination case in a landmark decision.

“Taking gender into account violates Title VII, and the court held that this evidence was gender stereotyping and that, in general, the definition of gender stereotyping misconduct, is founded on this insistence that men and women comply to certain norms,” Juarez said.

Related to the Price Waterhouse v. Hopkins case was Smith v. City of Salem, in which the U.S. Court of Appeals determined discrimination against transgender employees is a violation of Title VII. Juarez connected this to the current case in front of the Supreme Court in that they must now determine how transgender identity and Title VII relate.

In their opening arguments for R.G. & G.R. Harris Funeral Homes v. EEOC & Aimee Stephens, plaintiff attorneys argued Title VII does cover transgender individuals.

“The court said there should be no difference with the protected category of sex,” Sanders said. “If you fire someone because of a change in sex, it is the same thing. It is discrimination against sex.”

Sanders said past cases related to R.G. & G.R. Harris Funeral Homes v. EEOC & Aimee Stephens are also related to arguments at the Supreme Court.

“Is this about taking into account sex and what it means to discriminate on sex, … or is this just a very, sort of hyper-formalistic argument? No, it is because of sex,” Sanders said. “If a female employee wants to date a male, that’s fine. But if a male wants to date a male, that’s not fine and they get punished for it. That just seems like straight forward discrimination because of sex.”

Hively recounted her story in the case Hively v. Ivy Tech. Hively had worked at the community college for several years but was denied job opportunities several times due to her sexuality. As an openly lesbian woman, she said she felt wronged that the school had discriminated against her. She filed the case, and after several years she won.

To conclude the discussion, the panelists answered audience questions. One question addressed concerns that confirming that Title VII protects transgender individuals from discrimination, “mass chaos” would ensue.

At the end, the panelists offered their thoughts on how the case might turn out. Sanders stated he finds it probable Justice Gorsuch will be convinced by the plaintiff’s arguments, as was indicated in the preliminary stages of the case. His vote could mean the Supreme Court would tip in favor of the plaintiffs.

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