Uncertainty in a major transgender-bias SCOTUS case, and an EEOC Commissioner speaks her mind on LGBT rights and religious liberty.


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Usually, after my kids go to bed is when I write my blog posts for the following day. Last night that didn’t happen. Instead, while putting my two boys to bed, I fell asleep on the spare bed in their room. #Parenting

So, I apologize for the tardy post today.

Today’s post begins with a reverse chronology.

On Wednesday, I saw on both Facebook and Twitter that EEOC Commissioner Chai Feldblum was sharing her blog post on Medium, “What I Really Believe About Religious Liberty and LGBT Rights.” Commission Feldblum asked others to share her post. I’m happy to oblige. You should take a few minutes today to read it.

On Tuesday, I read Chris Opfer’s article on Bloomberg Law’s Daily Labor Report, “Trump Administration Rift on LGBT Worker Rights Nears Showdown.” Among other things, Mr. Opfer highlights a transgender-discrimination case that the Supreme Court may take up. Previously, the Sixth Circuit Court of Appeals ruled that an employer unlawfully sex-stereotyped when it terminated the employment of a transgender employee. Mr. Opfer reports that the attorneys representing the parties in that case “say they’ve seen no indication whether the Justice Department will pick a side or allow the EEOC to participate in the case.” Mr. Opfer notes that the Justice Department previously filed a brief in support of Masterpiece Cakeshop. That’s the Supreme Court case involving a baker that refused to decorate a cake for a lesbian wedding because he claimed it violated his religious beliefs.

Last March, I blogged here about the Sixth Circuit’s transgender-discrimination decision. That post included a recap of the wild procedural history, which involved the ACLU intervening on behalf of the transgender plaintiff after the plaintiff became concerned that the EEOC couldn’t adequately protect her interests.

Last February, I blogged here about the ACLU’s intervention in the transgender-discrimination case before the Sixth Circuit.

In 2016, I blogged here about the lower court decision that started this train to SCOTUS. The lower court concluded that, in certain situations, the Religious Freedom Restoration Act of 1993 (“RFRA”) (think: Hobby Lobby) would trump Title VII and effectively permit discrimination against transgender employees.

Got all that?

Will this journey end at SCOTUS?

Good question.

As Mr. Opfer notes, there are three different cases in which the losing party at the federal appellate court level is asking the Supreme Court to weigh in on LGBT rights under Title VII of the Civil Rights Act of 1964. Two of the cases involve discrimination based on sexual orientation. The other is the aforementioned transgender case from the Sixth Circuit.

Thus, the Supreme Court can decide two of them, one of them, or pass altogether.

What will happen? I don’t know. And, hopefully, I won’t be asleep on the spare bed in the boys’ room when it happens.

“Doing What’s Right – Not Just What’s Legal”
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