A gay-rights flag is flown outside the US Supreme Court. Credit: Diego M. Radzinschi / ALM

The civil rights firm Outten & Golden has hired a veteran transgender-rights litigator at a “critical inflection point,” as LGBT cases abound across state and federal courts, including the U.S. Supreme Court.

Jillian Weiss, joining the firm as of counsel in New York, will assist workers who face alleged discrimination based on sexual orientation, gender identity and gender expression. Weiss previously served as executive director of the Transgender Legal Defense & Education Fund.

Weiss had worked with Outten & Golden on several amicus cases in the U.S. District Court for the Southern District of New York, and she co-litigated some of the first transgender employment rights cases with the U.S. Equal Employment Opportunity Commission and the U.S. Justice Department.

“There is certainly more litigation,” Weiss said Wednesday. “We are at a critical inflection point.”

The U.S. Supreme Court is poised to consider whether federal civil rights law protects gay, lesbian and transgender employees from discrimination.

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The justices, at their Jan. 11 conference, will consider three cases that grapple with whether Title VII protections should extend to sexual orientation and gender identity. Two cases—Altitude Express v. Zarda (2nd Circuit) and Bostock v. Clayton County, Georgia (11th Circuit)—involve sexual orientation questions. The third case, R.G. & G.R. Harris Funeral v. EEOC (6th Circuit), tackles a transgender worker's rights.

Cases are cropping up throughout state and federal courts that address the issue of religious freedom versus LGBT equality in the workplace, dress codes that could restrict preferences of transgender employees and disputes over bathroom policies, Weiss said.

The scope of sexual orientation protections under federal civil rights law has divided lower courts and Trump-era federal agencies. The Justice Department under the Trump administration took a position against the EEOC's advocacy for a broad interpretation of sex discrimination. The DOJ, which rescinded guidance last year that clarified protections for transgender workers, also said it did not agree with the EEOC in its lawsuit fighting for gender identity protections.

Weiss said the Supreme Court has a good reason to rule in favor of LGBT employees.

“If they are principled, they could argue for conservative principles for textualism and interpreting statutes for what the words means, rather than what the legislator intended,” Weiss said. “Whether that will happen or not, I don't know.” She added: “Conservative principles suggest that sex includes gender.”

Weiss predicted more battles will be fought in the state courts, as parties turn there amid the influx of conservative judges appointed by the Trump administration to federal trial and appellate courts. She said more than 20 states have statutes protecting LGBT rights.

She predicted religious discrimination issues would continue to be divisive. Weiss pointed to the Republican-led block on the EEOC confirmation of Chai Feldblum, the agency's first openly gay member. Feldblum's critics have argued she dismisses religious rights in favor of LGBT protections, a charge she denies.

Dozens of large employers have filed court briefs supportive of LGBT rights, and very few are taking public stances against limiting protections for employees. “Employers of choice do not want to be seen as limiting LGBT rights,” Weiss said.

 

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