The Supreme Court passed up a chance Monday to decide whether federal workplace protections on sex discrimination extend to sexual orientation.
The question has divided lower courts and presidential administrations, as well. When Barack Obama was president, the Equal Employment Opportunity Commission said gay workers were covered by Title VII of the Civil Rights Act of 1964. But the Trump administration has said the language of the law is more restricted, covering gender but not sexual orientation.
It seems clear that the Supreme Court at some point will have to settle the issue. But the case at hand, involving a lesbian who worked as a hospital security officer in Georgia, had procedural problems that some argued made it a troublesome test case for the issue.
The justices did not explain their reasoning, which is common.
"By declining to hear this case, the Supreme Court is delaying the inevitable and leaving a split in the [circuit courts] that will cause confusion across the country," said Greg Nevins, employment fairness project director for Lambda Legal, which represented Jameka Evans. "It's unfortunate that the Supreme Court has refused to join us today, but we will continue to invite them to do the right thing and end this hurtful balkanization of the right of LGBT people to be out at work."
Evans sued officials at Georgia Regional Hospital at Savannah, a psychiatric facility, in 2015. Among other allegations, she said her superior tried to force her to quit because she wore a male uniform.
A three-judge panel of the U.S. Court of Appeals for the 11th Circuit sided with the hospital, noting that the Supreme Court has never ruled on whether the law protected sexual orientation.
But the case had proceeded in an unusual fashion. The hospital said it was never properly served in the case and would not participate. Evans filed the initial complaint herself, without benefit of counsel. The Georgia attorney general's office has opposed Evans's complaint.
The 11th Circuit ruling against Evans was at odds with that of another of the regional appeals courts. The full U.S. Court of Appeals for the 7th Circuit in Chicago ruled that Title VII does cover LGBT workers. The full U.S. Court of Appeals for the 2nd Circuit in New York is also hearing a case that raises the question.
The case the Supreme Court turned down is Evans v. Georgia Regional Hospital.