Altitude Express, a New York skydiving company, was accused of firing skydiving instructor Donald Zarda after he told a customer that he was gay. Gerald Bostock claimed he was fired from his job as a child welfare services coordinator for a Georgia county when his employer found out Bostock was gay.

In examining the text of Title VII, the Second Circuit, in a 10-3 opinion said, “the most natural reading of the statute's prohibition on discrimination 'because of … sex' is that it extends to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.”

Saul Zabell of Zabell & Associates in Bohemia, N.Y, represents Altitude Express. The Zarda estate's counsel is Gregory Antollino of New York.

The Eleventh Circuit in Bostock, in a per curiam opinion, applied a 39-year-old circuit precedent holding that “discharge for homosexuality is not prohibited by Title VII.” The full circuit court voted against rehearing the panel decision.

Brian Sutherland of Atlanta's Buckley Beal is counsel to Bostock; Clayton County is represented by Jack Hancock of Freeman Mathis & Gary in Forest Park, Georgia.

In R.G. & G.R. Funeral Homes, the justices limited the petition to one question: does Title VII prohibit discrimination on the basis of transgender status or sex stereotyping under their 1989 decision in Price Waterhouse v. Hopkins?

The Sixth Circuit answered yes to both questions. It ruled that the funeral home owners discriminated against its employee Aimee Stephens by applying a dress code based on the employee's biological sex rather than the employee's gender identity. The owners fired the employee, who was biologically male, after the employee informed the employer of her intention to transition to female and to dress as a female.

“It is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex,” the appellate court said. “Discrimination 'because of sex' inherently includes discrimination against employees because of a change in their sex.”

In October 2017, while the case was on appeal, then-U.S. Attorney General Jeff Sessions issued a memorandum stating that “Title VII's prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se,” and “Title VII is not properly construed to proscribe employment practices (such as sex-specific bathrooms) that take account of the sex of employees but do not impose different burdens on similarly situated members of each sex.”

The Justice Department's brief in the funeral home case lined up against the position of the EEOC. No agency lawyers appeared on the brief.

The agency had taken the position in the lower courts that Title VII does cover transgender discrimination. But U.S. Solicitor General Noel Francisco told the justices that the government disagreed with the Sixth Circuit. That court's Title VII ruling, wrote Francisco, was “inconsistent with the statute's text and this Court's precedent.”

Francisco also wrote that the court's finding that the funeral owners' engaged in improper sex stereotyping was a misreading of the high court's Price Waterhouse decision.

Francisco had urged the court to hold the transgender petition pending a decision on whether to grant review, or if granting review, a decision on the merits in Zarda or Bostock or both. There is a “much deeper and more entrenched” circuit conflict on the sexual orientation issue, he said, than on the gender identity question. If the justices denied review in Zarda and Bostock, then it should do the same in the funeral home petition, he added.

The funeral home owners are represented in the high court by James Campbell of Alliance Defending Freedom. Aimee Stephens's counsel is John Knight of the American Civil Liberties Union.

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