Some United States judges would like to protect transgender kids from discrimination at school. Some would like to prevent women from being fired because they marry a woman, or men from being mocked at work because they express an interest in other men.
But even if they wish for this to happen, the law may not make it so. Federal law does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity, whether it’s at a store, in a public park, at work, or in trying to rent a house from a landlord. Many states and cities do not explicitly prohibit this, either. While courts have tried to express sympathy for the people who bring these kinds of discrimination cases, a handful of recent decisions suggest judges won’t be willing, or don’t feel able, to affirm LGBT discrimination claims in court until the Supreme Court—or Congress—tell them to do so.
The big question courts have been struggling with is the meaning of “sex.” Under Title VII of the Civil Rights Act of 1964, most employers are prohibited from discriminating on the basis of sex, which covers everything from hiring and promotions to bad job assignments and harassment. Separately, under Title IX of the Education Amendments of 1972, schools that take federal money are prohibited from discriminating against students, denying them services, or barring them from participation in activities on the basis of sex.