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U.S. Supreme Court Refuses to Address Whether Law Prohibits Discrimination Based on Sexual Orientation

The U.S. Supreme Court has refused to hear an appeal in the case of Evans v. Georgia Regional Hospital from the 11th U.S. Circuit Court of Appeals on whether the “sex” in Title VII’s prohibition on workplace discrimination includes “sexual orientation.”

Both the U.S. District Court and the appeals court had ruled that “sex” did not include “sexual orientation.” While the Supreme Court’s action is encouraging in one sense, it appears that the Court refused to take up the case more for procedural reasons than because it agreed with the lower courts.

However, the Supreme Court will most likely resolve the underlying legal issue in the near future, because another such case is pending in the 2nd U.S. Circuit Court of Appeals.

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Justice Dept. Says Title VII of Civil Rights Law Doesn’t Cover Gender Identity

U.S. Attorney General Jeff Sessions issued a memorandum on Thursday stating that protections against workplace discrimination in federal civil rights laws do not extend to transgendered individuals.

While the Title VII of the Civil Rights Act of 1964 includes a prohibition of discrimination based on sex, it “does not encompass discrimination based on gender identity per se.” Sessions’ memo further provides that this is not a policy issue but a “conclusion of law.”

This is an about-face from the guidance provided under the Obama administration. According to the memorandum, the Trump administration will apply this conclusion to all pending and future matters.

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Judge Refuses to Rewrite Title VII

While federal judges increasingly show a proclivity toward “interpreting” laws in ways that actually rewrite them (see today’s blog post), the 11th Circuit Court of Appeals actually demonstrated some judicial restraint in a decision released this week. Lambda Legal, which represented fired lesbian security guard Jameka Evans, had hoped the court would expand the word “sex” in Title VII of the Civil Rights Act to include sexual orientation. The court refused, leaving it up to Congress to decide if sexual orientation should be added to the law.

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