(WB) The U.S. Supreme Court on Monday announced it won’t hear a case seeking protecting for lesbian, gay and bisexual workers under existing civil rights law barring sex discrimination.

The court announced it denied a writ of certiorari in Evans v. Georgia Regional Hospital as part of an order list Monday reflecting decisions made justices at a conference last week Friday. It takes a vote of four justices to agree to take up a case, although the vote isn’t made public.

The petition, filed in September by the LGBT group Lambda Legal, sought clarification the nationwide prohibition on sex discrimination in the workplace under Title VII of the Civil Rights Act of 1964 applies to cases of lesbian, gay and bisexual people.

Greg Nevins, Lambda Legal’s Employment Fairness Project Director, expressed disappointment in a statement the Supreme Court refused to take up the case.

“By declining to hear this case, the Supreme Court is delaying the inevitable and leaving a split in the circuits that will cause confusion across the country,” Nevins said. “But this was not a ‘no’ but a ‘not yet,’ and rest assured that Lambda Legal will continue the fight, circuit by circuit as necessary, to establish that the Civil Rights Act prohibits sexual orientation discrimination.”

Although the order list indicates the Supreme Court denied certiorari in the case, the court allows the filing of the friend-of-the-court briefs from 76 business and organizations, anti-discrimination scholars, LGBT groups including GLBTQ Legal Advocates & Defenders as well as legal scholar David Boyle.

Nevins told the Washington Blade the Supreme Court allowed the filing of these briefs even though it didn’t take up the case as “a courtesy kind of thing,” but that has no bearing on the merits of the case or the issue itself.

Lambda Legal filed the petition after the U.S. Eleventh Circuit Court of Appeals ruled against Jameka Evans, a security guard who claims she was targeted for harassment and effectively terminated from her job at Georgia Regional Hospital for being a lesbian.

Bucking a nationwide trend of court rulings, a three-judge panel on 11th Circuit determined Title VII afforded Evans no basis for relief because sexual orientation is separate from sex discrimination. Earlier this year, the full 11th Circuit refused to reconsider the decision “en banc,” or before the full court, prompting Lamdba Legal to file the petition.

The 11th Circuit ruling stand in contrast to a decision by the U.S. Seventh Circuit Court of Appeals in the case of Hively v. Ivy Tech Community College, which found gay protections under Title VII. The U.S. Equal Employment Opportunity Commission, the U.S. agency charged with enforcing federal employment non-discrimination law, determined in 2015 sexual-orientation discrimination amounts to unlawful sex discrimination under Title VII.

However, the U.S. Justice Department under U.S. Attorney General Jeff Sessions has argued against gay protections under Title VII. In a separate case on the same issue before the U.S. Second Circuit Court of Appeals, Deputy Assistant Attorney General Hashim Mooppan argued the prohibition on sex discrimination doesn’t apply to lesbian, gay and bisexual people because Congress for decades has resisted spelling out sexual-orientation discrimination is illegal.

Nevins said he was uncertain why the Supreme Court denied review of the case because similar Title VII vehicles aren’t often ripe for review.

“I can’t imagine they didn’t think the issue was important, I can’t imagine they didn’t see the circuit split,” Nevins said. “They may have thought…there will be a whole bunch more opportunities to address this issue, and I can’t tell you from my experience that that’s not necessarily the case, but they have been under that impression.”

In the aftermath of the Supreme Court decision, Nevins said LGBT rights advocates seeking gay protections under Title VII may “have to do a circuit-by-circuit slog” until justices agree to consider the issue.

“The Supreme Court could have done it all in one fell swoop, but they chose not to, so the fight continues on a circuit-by-circuit basis,” Nevins said.

Anthony Kreis, a visiting assistant law professor at the Illinois Institute of Technology, said he thinks the Supreme Court didn’t take up the case because other legal avenues are available to Evans.

“Jameka Evans’ lawsuit alleged she was mistreated by her supervisors because she didn’t appear feminine enough for their liking,” Kreis said. “The Eleventh Circuit said she could file suit under that theory, but she could not go forward with her lawsuit under the theory she was mistreated because of her sexual orientation. The Supreme Court is unlikely to grant cert in a case where the petitioner still has a viable claim, albeit under a different theory than she’d like.”

Kreis added Georgia Regional Hospital refused to defend itself in the case because it felt like it wasn’t properly served, which he said adds “a thorny procedural quirk that the court wouldn’t want to have in a case with such major ramifications like this.”

As for Evans, Nevins said Lambda Legal has filed an amended complaint in trial court on her behalf seeking relief on the basis of gender non-conformity claims, not sexual-orientation claims.

“That case will go on, but until there’s a change in the law, her allegations of discrimination on the basis of being a lesbian won’t be allowed in that case,” Nevins said.

The Supreme Court may get another chance very shortly to determine whether Title VII bars sexual-orientation discrimination. The Second Circuit may render a decision in the Zarda case soon, enabling the losing party to file a petition of certiorari before the Supreme Court for relief.

But Nevins said he’s uncertain whether the Zarda case would, in fact, be a potential vehicle for the Supreme Court to make a nationwide ruling.

A Second Circuit win would preclude the ability of LGBT rights advocates to seek review from the Supreme Court, Nevins said, and the defendant in the case, Altitude Express, was arguing against Zarda on simply a technical basis and would be unlikely to carry the case further if it loses.

“We will have another great circuit win, but we won’t have a great Supreme Court vehicle,” Nevins said. “I hope the court wasn’t suffering under that misimpression, but at any rate, right now we’re right back where we were at the circuit-by-circuit slog and we’ve always been prepared to roll up our sleeves and do that, and we still are.”

Sarah Warbelow, legal director for the Human Rights Campaign, said in a statement the Supreme Court refusal to hear the Evans case demonstrates the need for Congress to enact legislative LGBT non-discrimination protections in the form of the Equality Act.

“By refusing to hear this important case, the Supreme Court is delaying the inevitable fix and leaving the civil rights of LGB people to be inconsistently applied according to conflicting rulings by circuit courts,” Warbelow said. “This further underscores the need for Congress to pass the Equality Act to provide consistent and explicit non-discrimination protections for LGBTQ people across all civil rights laws.”


— Chris Johnson, Washington Blade courtesy of the National LGBTQ Media Association.