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I'm not sure it's necessary to get into sexual orientation to resolve this case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

—Chief Justice John G. Roberts Jr., oral argument in Obergefell v. Hodges, April 28, 2015

On October 8, two days into the U.S. Supreme Court's 2019 term, the justices will take up three cases from the 2nd, 6th and 11th Circuits that will have profound implications on employment nationwide. The court will hear arguments in Bostock v. Clayton County, Georgia, Case No. 17-1618, and Altitude Express v. Zarda, Case No. 17-1623, appeals from the 11th and 2nd Circuits, respectively, on the question whether a sexual orientation discrimination claim is actionable as sex discrimination under Title VII of the Civil Rights Act of 1964. Then, in R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission and Aimee Stephens, Case No. 18-107, the court will consider an appeal from the 6th Circuit on the question whether a gender identity discrimination claim is actionable as sex discrimination under Title VII.

The two sexual orientation discrimination cases are consolidated into a one-hour argument, with the plaintiff-employee appealing in Bostock and the defendant-employer appealing in Altitude Express, followed by a one-hour argument scheduled in R.G. & G.R. Harris Funeral Homes, where that employer is also appealing. This comes against the shift in the political backdrop to these social and legal issues that followed the 2016 presidential election, a seismic change that has impacted the cases on both sides of the bench.

Harris Funeral Homes offers a curious scenario in which the Equal Employment Opportunity Commission (EEOC), represented by the U.S. Solicitor General, has joined with the employer to ask the court to reverse the 6th Circuit, which found in favor of the transgender employee. Interestingly, despite the prodding of the Solicitor General's Office, the EEOC's general counsel did not join in the government's brief, nor did any EEOC staff attorney.** Moreover, despite the solicitor's legal arguments to the contrary, the EEOC had not (yet) formally rescinded its position that gender identity discrimination claims are covered under Title VII, though that is largely expected soon, including a possible overruling of Macy v. Holder, EEOC Doc. 0120120821, 2012 WL 1435995 (2012), and Baldwin v. Foxx, EEOC No. 0120133080, 2015 WL 4397641 (2015), which underpin the agency's rationale for extending Title VII protections. During oral arguments before the 2nd Circuit in Zarda v. Altitude Express, the en banc panel seemed to express judicial "bemusement," as LGBT legal scholar Professor Arthur Leonard at New York Law School expressed it, in facing lawyers from both the solicitor general's office and the EEOC arguing against each other. The solicitor's argument is discussed in more detail below.

This unique situation leaves transgender funeral director Aimee Stephens, who intervened as a co-appellant in the 6th Circuit, to take up her own case, represented by the American Civil Liberties Union before the court. R.G & G.R. Harris Funeral Homes is represented by Alliance Defending Freedom (ADF), a conservative religious litigation organization that frequently opposes LGBT rights throughout the country. ADF is still smarting from their loss at the high court against Garden State Equality and the State over New Jersey's sexual orientation conversion therapy ban.

The court is treating all the employee-plaintiffs in the three cases as petitioners (although only Gerald Bostock is actually a petitioner), and the three employer-defendants are deemed respondents. The first round of briefing, consisting of the main briefs for Bostock, the Estate of Donald Zarda (the decedent's sister has stepped in as executor), and Aimee Stephens, concluded early in July. They were joined by over 40 amicus briefs filed in support of their claims that Title VII extends to sexual orientation and gender identity discrimination claims, including one brief by 153 members of Congress and another by 206 national and international companies such as Apple, Facebook, Uber, Walt Disney and Coca-Cola, arguing that a Title VII ban on sexual orientation discrimination would not be "unreasonably costly or burdensome" for employers and would, in fact, create benefits for businesses, such as "consistency and predictability" nationwide and making it easier to "recruit and retain top talent."

The second round of briefing concluded in August, with briefs filed by the three employers:  Clayton County, Georgia; Altitude Express; and R.G. & G.R. Harris Funeral Homes. Altitude Express and Clayton County predictably argue that the meaning of Title VII must be its "original public meaning," that is, the meaning that the public would attribute to the statutory language in 1964 when it was enacted by Congress. The EEOC, now siding with the employer, also filed a brief supporting the employers while managing to avoid any pronouns in referring to Ms. Stephens. These respondents were joined by two dozen amici arguing that Title VII does not include sexual orientation and gender identity within the definition of sex. One amicus party, the Foundation for Moral Law, argued that the framers of the Civil Rights Act of 1964 never intended to protect gay men against discrimination based on sexual orientation because at that time, homosexual conduct was criminalized and deemed immoral in all 50 states.

The solicitor's brief for the EEOC urges the court to adopt a narrow interpretation of the seminal Title VII Supreme Court precedents on which the EEOC had relied in the 6th Circuit: the landmark "sex stereotyping" discrimination decision, Price Waterhouse v. Hopkins, and the Justice Scalia-penned unanimous same-sex discrimination holding in Oncale v. Sundowner Offshore Services. The solicitor argues that the 6th Circuit had extended these cases beyond their holdings to reach the conclusion that allowing gender identity discrimination claims is consistent with Supreme Court precedent.

These cases present potential for an upheaval in employment laws and, more significantly, the opportunity for the LGBT community to achieve one of the great civil rights advances it has sought for many years—nationwide protection from employment discrimination. The conventional wisdom suggests that the court cannot avoid reading Title VII to include gender identity since, on its face, the issue of gender identity is literally discrimination on the basis of sex. While sexual orientation is one step removed, the analysis in both of the cases addressing that issue under Title VII also extends from an immutable sex-based classification. However, as Chief Justice Robert's question above suggests, the result is unpredictable. Tune in on October 8.

Transcripts of arguments will be posted on the court's website within an hour or two of completion, and links to audio recordings will be made available on the court's website later that week.

**Editor's Note: The column previously referred to the EEOC General Counsel as a President Obama appointee. Sharon Fast Gustafson was appointed by President Trump and sworn in on Aug. 9, 2019.

Thomas H. Prol is a member of Sills Cummis & Gross and an adjunct professor of Law & Sexuality at Seton Hall University School of Law. He was the first openly gay president of the New Jersey State Bar Association in 2016-2017. The opinions expressed herein are his own.