The Most Interesting Possible Upcoming Supreme Court Case You Haven't Heard Of

Jameka Evans was a security guard at Georgia Regional Hospital in Savannah, Georgia.  From the beginning of her employment in 2012, Evans was treated badly.  She was harassed verbally and physically; she was criticized for wearing a "male" uniform and having a short haircut, and for not carrying herself in a "traditional woman[ly] manner."  In short, she was being harassed for both her gender presentation and her sexual orientation. 

Evans left her job about a year later, sick of the constant harrassment, and filed a complaint under a federal law known as "Title VII."  Title VII prevents  discrimination on the basis of sex, including sex stereotyping.  The case went to a federal district court, where she lost because the court said that Title VII was intended to protect "sex," not "homosexuality."

Evans then appealed to the next court up (the 11th Circuit, since she lives in Georgia), saying that Title VII prevented discrimination against her on the basis of sexual orientation and gender presentation.  That court, too, ruled against her (and as a Slate article pointed out, the ruling was weird in a variety of ways).  The court separated the gender nonconformity part from the sexual orientation part.  They vacated (basically overturned, but without creating precedent) that part of the district court's order, saying that she could go back and try with that part of the case again.

Evans and her lawyers then asked for something called an "en banc" hearing, which means that instead of the usual three-judge panel, all the judges on the 11th Circuit would have heard the case.   This was denied, meaning that the ruling against Evans stands--at least, until the U.S. Supreme Court says otherwise.

So Evans, represented by Lambda Legal, decided to petition the Supreme Court to hear the sexual orientation part of the case.  The petition (which you can download from this site if you're interested) is terrific, clearly explaining why discrimination on the basis of sexual orientation is a form of gender discrimination.  It states, "It cannot be that Title VII allows an employer to fire Sharon for exercising her constitutional right to marry her girlfriend while retaining her co-worker Samuel after he marries his."

Will the Supreme Court take the case?  Who knows.  But I suspect it will, since nearly all the circuits have weighed in, there's a circuit split (thanks to the 11th Circuit), and it's an important issue.  

To go back to the gender nonconformity piece for a minute: it's kind of interesting: Title VII definitely applies to "sex stereotyping" (as the Supreme Court decided in a 1989 case called Price Waterhouse v. Hopkins), which is what courts rely on to explain that gender nonconformity is covered.  Which would seem to mean that trans people are definitely covered, right?  So if the Supreme Court ruled against Evans, a few things would happen that seem like sort of untenable outcomes:

1. Title VII would protect trans people but not gay people.
2. Title VII would protect butch lesbians but not femme lesbians.
3. In a Title VII case where a butch lesbian was claiming discrimination, she'd have to show that she was discriminated against because of her gender presentation and not her sexual orientation, and the defendant could win the case if they could prove that they were discriminating against her because of her sexual orientation, not her gender presentation.

​Anyhow, it's an exciting case with huge implications. Keep an eye on this one, dear readers.

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