By Sasha Buchert – Senior Attorney, Lambda Legal
May 1, 2019 marks the 30th anniversary of the U.S. Supreme Court landmark decision Price Waterhouse v. Hopkins. The case involved a plaintiff named Ann Hopkins who was denied a partnership at her firm because her employer believed she was insufficiently stereotypically feminine. To improve her chances of making partner, Ms. Hopkins was told to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” She sued the firm and won a favorable decision holding the firm liable for discriminating against her on the basis of sex under Title VII of the Civil Rights Act of 1964.
In the decision, the Supreme Court clarified that Title VII bars not just discrimination because of one’s sex assigned at birth, but also prohibits discrimination based on gender stereotyping. In other words, it is impermissible to treat employees differently based on their sex and it is also impermissible to treat employees differently because they are not the right kind of man or woman or non-binary person according to the employer. The Supreme Court clarified that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”
The ruling in Price Waterhouse v. Hopkins has led to a substantial number of lower court rulings in favor of LGBT plaintiffs who argued that they too were discriminated against based on gender stereotyping. In fact, five federal appeals courts have explicitly ruled that transgender people are protected against discrimination under federal laws prohibiting sex discrimination, as have dozens of federal district courts and state courts.
When transgender people face discrimination because they don’t conform to employers’ expectations about how men and women should look, behave, or identify, that’s sex discrimination. For example, as a result of a challenge brought by Lambda Legal, an Eleventh Circuit Court clarified that discriminating against a transgender employee is sex discrimination because, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”
There is a growing consensus among the courts, administrative agencies, and scholars that these laws protect lesbian, bisexual, and gay people from discrimination too. When lesbian, gay, and bisexual people face discrimination because of their sex in relation to the sex of the people they form intimate relationships with, that’s sex discrimination as well. Two federal appeals courts have also explicitly ruled that LGB people are protected against discrimination.
But the groundbreaking precedent created in Price Waterhouse and the lower court decisions that flowed from that case are now at risk. On April 22, 2019, the U.S. Supreme Court granted review in three cases concerning Title VII and whether the prohibition on discrimination on the basis of sex is properly read to prohibit discrimination on the basis of sexual orientation or gender identity.
The Supreme Court, consistent with the precedent created in Price Waterhouse and the many lower court decisions holding that LGBTQ people are protected against impermissible sex stereotyping, should hold that Title VII prohibits discrimination based on gender stereotyping discrimination against LGBT people.
Beyond the holding in Price Waterhouse, the plain language of Title VII clearly demonstrates that Title VII should be interpreted to prohibit discrimination based on both sexual orientation and transgender status. Specifically, it prohibits discrimination “because of” an individual’s sex. It is impossible to discriminate based on a person’s sexual orientation or transgender identity without taking their sex, or perception of it, into account. For example, if an employer was perfectly happy with an employee who had been coming to work presenting as male, but then wants to fire that employee when the employer learns that the employee is female and intends to live authentically as a woman, the only thing that has changed in this equation has to do with the employee’s sex. It is sex discrimination, plain and simple. Likewise, if an employer has no problem with a male employee being married to a woman, but fires a female employee if *she* marries a woman, then that is sex discrimination, full stop.
Moreover, if the Supreme Court were to reverse Supreme Court precedent and the lower court rulings, it would in effect be stripping away workplace protections from millions of LGBTQ people that have been established by multiple federal courts, confirmed by the EEOC, and accepted by the overwhelming majority of American people. The Supreme Court would be forcing LGBTQ folks back into the closet in the workplace and ultimately in multiple other settings. A ruling on the meaning of federal anti-discrimination law in employment could have ripple effects in other settings, such as education, housing and credit, because sex discrimination provisions are usually interpreted consistently across the various federal civil rights statutes in which such protections appear.
The Price Waterhouse v. Hopkins decision clarified that discrimination against an employee on the basis of the employee’s non-conformity with gender stereotypes constitutes impermissible sex discrimination. In the last thirty years, dozens of lower court decisions have cemented this understanding of Title VII. The Supreme Court now has an opportunity to affirm these rulings and to help stop employers who say it should be perfectly legal to fire someone just because she is lesbian, gay, bisexual or transgender. To hold otherwise would not only be wrong as a matter of law, but it would also violate the core American values of fairness and equal opportunity.
Lastly, in addition to the case law precedent that has already clarified existing law, we need to continue to pursue explicit protections from discrimination based on sexual orientation and gender identity, like the Equality Act, in order to establish unmistakable, comprehensive protections nationwide.
 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
 The three cases are: Altitude Express v. Zarda, Bostock v. Clayton County (GA) (combined for purposes of SCOTUS oral argument), and R.G. & G.R. Harris Funeral Homes v. EEOC.