Matthew T. Nelson, left, and Jarrod Trombley, right, of Warner Norcross + Judd.

A new U.S. Supreme Court term has started with just three U.S. Court of Appeals for the Sixth Circuit decisions on the court's docket. Gone are the days when the Sixth Circuit challenged the Ninth as the most reversed federal appellate court. Last term, the Supreme Court granted certiorari in seven Sixth Circuit cases and reversed the Sixth Circuit just three times, a very respectable 57% affirmance rate—never mind the Sixth Circuit was affirmed just once in the preceding two terms.

Of the troika of Sixth Circuit cases before the high court this term, the most widely known is R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. There, the Sixth Circuit held that discrimination based on transgender status is necessarily discrimination motivated by sex in violation of Title VII of the Civil Rights Act of 1964.

The case arose after an employer terminated a transgendered employee who, although identified as male when hired, began to present as a woman. The employee refused to comply with the dress code for male employees and the employer cited the dress code, along with the employer's religious beliefs, as a justification for ending the employment. The Sixth Circuit decided the employee was fired due to the employee's failure to conform to the sex stereotypes of a biological male in violation of Title VII. The court reasoned that it is impossible to terminate an employee based on that person's transgender status without being motivated by the employee's sex.

The Sixth Circuit's decision created a circuit split with decisions from the Eighth and Tenth circuits. The Supreme Court accepted the case and heard argument on the same day as arguments about whether employment discrimination based on sexual orientation is unlawful under Title VII.

Although the Supreme Court's commitment to textualism in statutory cases is undiminished, this case tests of the continued vitality of the original-meaning approach to statutory interpretation. The employer argued before the Supreme Court that the term "sex" in Title VII cannot encompass gender identity because no one would have understood "sex" to have that meaning in 1964. In contrast, the employee argued that the Sixth Circuit correctly reasoned that employment decisions motivated by transgender status necessarily are because of sex—at the very least as a matter of sex stereotyping.

After oral argument, considerable attention was focused on Justice Neil Gorsuch's comments that the text of Title VII was "close," but including gender identity within sex under Title VII would cause "massive social upheaval." The court appears to be closely divided—no surprise to court watchers—with Gorsuch appearing to be the possible swing vote—which is a surprise.

Neither of the other Sixth Circuit cases before the Supreme Court has the same draw and public interest. The first involves when a bankruptcy court's decision to lift the Bankruptcy Code's automatic stay is appealable.

Filing for bankruptcy usually halts or stays all other cases against the bankrupt party. Not infrequently, the parties in the other cases ask the bankruptcy court to lift the stay to allow the other lawsuits to proceed. In Ritzen Group v. Jackson Masonry, the Sixth Circuit addressed when a party must file an appeal from a bankruptcy court's denial of a motion to lift the stay. The Sixth Circuit determined an order denying relief from an automatic stay terminates a discrete proceeding—a contested case. It is therefore final and immediately appealable. According to the Sixth Circuit, the failure to take a timely appeal deprives the appellate courts of jurisdiction to review the bankruptcy court's decision not to lift the stay.

Seven other federal circuit courts of appeals have reached the same conclusion, but the First and the Third circuits have adopted a different rule. In those circuits, courts must consider the nature of the dispute and whether the effect of the order denying the lift of stay really resolves the contested case. The rule adopted by the Sixth Circuit and most of the other circuits provides a bright-line rule for bankruptcy and appellate practitioners, while the rule adopted by the First and Third circuits is more amorphous and poses a potential trap for the unwary litigant.

The Supreme Court agreed to review the Sixth Circuit's decision to resolve the established circuit split. The court will hear argument Nov. 13.

The final Sixth Circuit decision before the Supreme Court addresses two questions arising under the Hague Convention on the Civil Aspects of International Child Abduction. Under the Hague Convention, the country of a child's habitual residence frequently determines whether a child's removal or retention by one parent is wrongful. In Monasky v. Taglieri, the district court determined a child who was born in Italy to an American mother and an Italian father was habitually a resident in Italy even though the mother fled Italy with the child to escape domestic abuse when the child was only a few months old.

The Sixth Circuit ruled it could only review the district court's decision for clear error. The Sixth Circuit then reasoned that even though the child could not have acclimatized to Italy because she was so young, the lack of any agreement between the parents as to where the child would live did not mean that Italy was not the child's habitual residence. The Sixth Circuit upheld the district court's ruling even though it meant the custody of the child would be determined in the alleged domestic abuser's home country.

The standard for reviewing habitual residence determinations under the Hague Convention has been the subject of conflicting decisions among the federal circuits and by international courts. In particular, there has been significant debate about the importance of the parents' shared intent about where the child should live in deciding where a child is habitually resident. The Sixth Circuit is the only circuit court that plainly states parents' subjective intent plays no role in the decision, but the importance of shared parental intent has been lessening in decisions from courts in various international tribunals. The Supreme Court will hear argument in Monasky on Dec. 11.

Matthew T. Nelson is a partner and chair of the appellate and Supreme Court practice at Warner Norcross + Judd resident in the firm's Grand Rapids, Michigan office.

Jarrod Trombley, an associate with the firm in the Grand Rapids, Michigan office, focuses his practice on litigation, dispute resolution and employment litigation.