Pending Supreme Court Case Could Affect All LGBTQ Educators, Students

The stakes are high: An adverse ruling would negatively affect educators and students across the country. 

The U.S. Supreme Court is reviewing several circuit court cases that will decide whether LGBTQ employees — including all LGBTQ educators — are protected under federal law from discrimination based on sexual orientation or gender identity.

The stakes are high: An adverse ruling would negatively affect educators and students across the country. The following Q&A addresses key questions about what’s at stake, what NEA is doing on this issue, and how we can work to guarantee protections for our members no matter what the outcome in this case.

What is this Supreme Court case about? Why is it important for protections against sexual and gender discrimination?

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex and national origin. It generally applies to employers with 15 or more employees, including federal, state and local governments. The U.S. Supreme Court is now considering whether Title VII prohibits discrimination in employment based on sexual orientation or gender identity.

In recent years, the trend in lower federal courts has been to recognize that sexual orientation and gender identity discrimination are forms of sex discrimination, and thereby prohibited under federal law. In addition, the federal agency primarily charged with enforcing employment discrimination laws, the Equal Employment Opportunity Commission, reached that same conclusion several years ago.

However, the lead case on this topic is now Bostock v. Clayton County, Georgia out of the 11th Circuit Court, which ruled that Title VII does not offer protections against discrimination based on sexual orientation. The Supreme Court has granted review on this case, as well as several other circuit court cases that have addressed LGBTQ rights and protections in employment. The Supreme Court will also decide whether Title VII prohibits discrimination against transgender people based on their status as transgender, or based on “sex stereotyping” as defined in prior guiding cases.

Although the Supreme Court will consider only employment cases in its review, how it rules in this case has much broader implications; it could also control sex discrimination law in education (Title IX), housing, health care, and more.

How might this case affect educators?

LGBTQ educators have long faced employment discrimination, typically based on enforcement of gender norms, and largely based on fears that they will “convert” students or tell them how they should express their own gender. This has led to many cases of illegal discipline or firing based on sexual orientation or gender identity. Protections under Title VII have provided educators with legal tools and remedies to combat and overturn such discipline and keep their jobs.

If the Supreme Court concludes that sexual orientation and gender identity discrimination are forms of sex discrimination, NEA’s LGBTQ members will continue to be protected under federal civil rights law. Should the court conclude that sexual orientation and gender identity discrimination are not forms of sex discrimination, our LGBTQ members will have virtually no protection under federal law.

“This is a very big case. We really cannot overstate how much is at stake.”

– Eric Harrington
NEA Office of General Counsel

“This is a very big case. We really cannot overstate how much is at stake,” says Eric Harrington of the NEA Office of General Counsel. In addition to removing these protections against sex discrimination, an adverse ruling could result in the Supreme Court overturning previous rulings and eliminating other protections and rights. “It’s possible the court could throw out all sorts of protections against other discrimination,” says Harrington, “including discrimination against young moms, against lactating and breast-feeding moms … even discrimination simply because you are a young mom. So there is really a lot at stake for women as well.”

How might this case affect students?

Although the federal circuit court cases being reviewed by the Supreme Court are employment cases under Title VII, LGBTQ students’ rights will be affected as well. That is because courts, including the Supreme Court, construe and interpret the prohibition on sex discrimination in education found in Title IX of the Education Amendments of 1972 in the same way they construe Title VII’s sex discrimination provisions. In other words, if LGBTQ employees are protected by Title VII, LGBTQ students are protected by Title IX. But if LGBTQ employees aren’t protected by federal law, then students won’t be either.

In addition, if schools can legally discriminate against LGBTQ educators, by firing them or making them feel they need to be closeted, that has a ripple effect on students. It sends a message to LGBTQ students that they can’t be themselves, that they too need to be closeted, and that they may face discrimination and harassment without any repercussions for perpetrators.

“Being LGBTQ in schools can be really hard,” says NEA’s Harrington. “Just coming out as a kid can be very difficult. LGBTQ students often face backlash from the community and at school. All that negative social pressure is really hard. It also contributes to higher rates of depression and suicide.” On the other hand, he says “when LGBTQ students go to schools that are welcoming and supportive, they do so much better. They thrive. Discrimination is harmful. And inclusion is super-positive.”

What is the current status of the case? What is the timeline for a ruling?

Briefings before the Supreme Court will be completed in this summer. Oral arguments will take place in October 2019 and a decision is expected by June 2020.

What is NEA doing? How will we be ready whatever the outcome?

NEA is leading a coalition of education groups in filing an amicus brief in the Supreme Court. The brief supports the idea that sexual orientation and gender identity discrimination are forms of sex discrimination.

The coalition includes the National Schools Board Association. This is significant, because to our knowledge NSBA has never before filed a brief in the Supreme Court on the side of expanding employee rights. This indicates that they, too, believe these protections are of vital importance to educators and students.

NEA is also active in supporting state and national legislation that guarantees protections against sexual and gender discrimination. Twenty states currently have statutes outlawing LGBTQ discrimination. At the national level, the Equality Act is a bill in the U.S. Congress that would amend the Civil Rights Act of 1964 to prohibit explicitly discrimination on the basis of sexual orientation and gender identity in employment, housing, public accommodations and public education. The bill passed in the U.S. House in May 2019. It went to the Senate, where Senate Majority Leader Mitch McConnell has blocked it from coming up for a vote.

NEA considers mobilizing in support of the Equality Act to be a top legislative priority.

A bad Supreme Court ruling could effectively be overturned by Congress. In fact, we believe an adverse decision would make passage of the Equality Act absolutely necessary. NEA considers mobilizing in support of the Equality Act to be a top legislative priority.

A bad court ruling can also be remedied by additional states passing LGBTQ protections, or explicitly recognizing that sexual orientation and gender identity discrimination are forms of sex discrimination under their current sex discrimination laws. NEA is organizing and mobilizing around the country to support and pass such state-level protections.

During the period the court is hearing the case, NEA is also working to educate members and affiliates on this issue. “There is a lot of confusion,” says Harrington, “about who currently has what rights and where. It’s kind of a patchwork thing.” In addition, he says, the more NEA can channel activist energy now toward education and advocacy in support of the Equality Act and state legislative protections, the better positioned we will be to protect our LGBTQ members in the event of an adverse Supreme Court decision next June.