Some federal appellate courts have recently reached opposite conclusions about whether the prohibition on discrimination in employment “because of … sex” under Title VII of the Civil Rights Act of 1964 includes discrimination on the basis of sexual orientation and transgender status. The U.S. Supreme Court is currently in the process of deciding which of the readings is correct.

In April 2017, the U.S. Court of Appeals for the Seventh Circuit was the first federal appellate court to hold that discrimination on the basis of sexual orientation is a form of discrimination because of sex in Hively v. Ivy Tech Community College (en banc). In February 2018, the Second Circuit (en banc) followed suit in Zarda v. Altitude Express, holding that “Title VII prohibits discrimination on the basis of sexual orientation as discrimination ‘because of … sex.’” The next month, the Sixth Circuit similarly held that “discrimination on the basis of transgender and transitioning status violates Title VII” in Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, involving a transgender employee named Aimee Stephens.

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