Where are we now and where are we headed?
How has the court addressed the issue?
Where are we headed?
- Druley v. Patton, 601 Fed. Appx. 632 (10th Cir. 2015) – Judge Gorsuch joined an unpublished opinion ruling against a transgender inmate’s constitutional claims seeking hormone treatment and re-assignment from an all-male facility.
- Kastl v. Maricopa County Community College District, 325 Fed. Appx. 492 (9th Cir. 2009) – Judge Gorsuch, sitting by designation on the U.S. Court of Appeals for the Ninth Circuit, joined an unpublished opinion that, while recognizing that a transgender person can state a claim for sex discrimination under Title VII based on a theory of gender stereotyping, ultimately ruled against the plaintiff. The employer had barred the plaintiff from using the female restroom until completing gender-confirmation surgery. The court held that “restroom safety” was a non-discriminatory reason for the employer’s decision.
- Hobby Lobby Stores v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) – Judge Gorsuch joined an opinion in favor of companies alleging that the Affordable Care Act’s contraception mandate violated their religious rights under the federal Religious Freedom Restoration Act (RFRA). Judge Gorsuch authored a concurrence to explain his expansive view of religious liberty claims under RFRA.
In consideration of the broad right to be free from sexual orientation-based harassment recognized under the WLAD, Washington state law, rather than federal law under Title VII, appears to be a better avenue to pursue in anti-LGBTQ+ cases. But changes in the understanding of sex discrimination under Title VII under the current Supreme Court will further define the extent to these protections. If not, it may be up to Congress to change the law and create better protections within the workplace.
If you or someone you know is the victim of unwanted and egregious discrimination based on sexual harassment or gender identity in the workplace, contact a lawyer that can help you to formalize a plan to combat this illegal discrimination.
Colin McHugh is an experienced plaintiff-side employment attorney and has represented individuals in Washington state, federal, and administrative courts in matters including but not limited to sexual orientation discrimination, sexual harassment, and other WLAD and Title VII matters. For more information, go to his bio here.
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Colin F. McHugh
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Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue you should consult an attorney.