The Supreme Court will decide whether it is federally illegal to fire someone based on sexual orientation and gender identity.
The case, formally known as Bostock v. Clayton County, was granted in April of this year and was argued on Oct. 8. The case decision is pending.
According to the Associated Press, 28 U.S. states do not have laws which protect members of the LBGT community from workplace discrimination.
While there are federal laws which protect employees from workplace discrimination on most bases, sexual orientation and gender identity-based discrimination laws vary according to individual state legislature.
Pennsylvania does protect LBGT workers from discrimination in accordance to two executive orders signed by Governor Tom Wolfe in April 2016.
Since 1964, workplace discrimination based on sex, race, national origin, and religion has been illegal in the United States, according to Title VII of the Civil Rights Act.
However, since the Act does not explicitly mention sexual orientation or gender identity, the law has left interpretation open to viewing sexual orientation and gender identity discrimination as separate entities not protected by the Title VII.
The issue that is being decided on is whether the word ‘sex’ can be a blanket term for sexual orientation and gender identity. If the court decides the word ‘sex’ singularly relates to biological sex, LBGT workplace discrimination will continue to be legal in states that do not have laws outlawing sexual orientation and gender identity-based discrimination.
Supporters believe that the term ‘sex’ encompasses sexual orientation and gender identity because theses forms of discrimination are inherently sex-based, while the main argument of the opposition is the right to religious freedom and expression.
Additionally, employers have sited dress code policies as the reason why they do not employ transgender employees.
The Trump administration filed a brief in support of employers who argue that Title VII only applies to biological sex and not to sexual orientation and gender identity.
The Supreme Court concurrently heard three cases on Oct. 8. Two of the suits focused on gay men, while the other focused on a transgender woman, all of whom were fired based on their sexual orientation or gender identity.
Currently, 5 out of 9 justices on the Supreme Court hold conservative leaning views. This means that the fight for inclusion may be an uphill battle for the plaintiffs. According to the New York Times, the justices are fairly divided. This case is the first LBGT-focused suit to appear in front of the Supreme Court since the retirement of Justice Anthony M. Kennedy, who joined 4 liberal justices in ruling in favor of same-sex marriage in 2015.
However, the vote of Neil M. Gorsuch, President Trump’s first appointed justice, may still be viable for a 5-4 vote in favor of the plaintiffs.