The Supreme Court held in 2020 that Title VII’s prohibition on sex discrimination in employment applies to discrimination based on sexual orientation and gender identity. A for-profit wellness business and a church then filed a class action lawsuit against the Equal Opportunity Employment Commission (EEOC), seeking a ruling that the First Amendment and Religious Freedom Restoration Act (RFRA) bar enforcement of this prohibition against any employer that opposes “homosexual or transgender behavior” for religious or non-religious reasons, and that Title VII does not prohibit a variety of policies relating to workplace conduct, including those that target bisexual employees and that relate to gender-affirming medical care. The district court rejected the EEOC’s arguments that the plaintiffs lacked standing because they faced no imminent enforcement action and had not alleged that they had any LGBTQ employees or applicants. The court then certified two nationwide classes: a “religious business-type employers” class and an “all opposing employers” class. The court held that both RFRA and the First Amendment require that all members of the first class be exempted from any prohibition on sexual orientation or gender identity discrimination. And it held that, as to the second class, policies relating to sexual conduct of employees, dress codes, and sex-based restroom assignments do not violate Title VII, but that discrimination against bisexuals and gender-affirming medical care does.
Both the plaintiffs and the EEOC appealed. On appeal, Public Citizen filed an amicus brief explaining that the district court lacked jurisdiction to hear the case because, due to the abstract nature of the arguments and lack of any imminent enforcement action, the plaintiffs sought (and the court provided) an impermissible advisory opinion. In an opinion issued in June 2023, the Fifth Circuit vacated the class certification and judgment, as well as the determination about bisexuality, but it held the individual employer exempt under RFRA from enforcement of Title VII’s prohibition against discrimination based on sexual orientation and gender identity.