One of the most important developments in employment law over the past several years has been the expansion by some federal courts of Title VII’s sex discrimination prohibitions to encompass sexual orientation and gender identity. Last year, the Seventh and Second Circuits took this position, while the Eleventh Circuit reached the opposite conclusion. The debate among federal appellate courts continued earlier this month, when a concurring opinion in a Fifth Circuit Court of Appeals panel indicated that only Congress could extend employment discrimination protections on the basis of sexual orientation or gender identity.

In Wittmer v. Phillips 66 Co., the plaintiff claimed that she was denied employment based on her transgender status. In the main opinion, the court concluded that the defendant had demonstrated legitimate business reasons unrelated to gender identity for failing to hire the plaintiff. However, in a concurring opinion, one of the panel judges expressed his opinion that Title VII covers neither gender identity nor sexual orientation discrimination claims. He said that the Supreme Court’s Price Waterhouse decision did not change this analysis because it does not outlaw sexual stereotyping unless it favors one sex over the other.

The other two panel judges did not join in this opinion, and therefore it is not binding precedent. However, unlike some of the earlier appellate court decisions, the Fifth Circuit panel expressly refused to use this case to address the basic question of the scope of Title VII’s sex discrimination provisions. The Supreme Court has delayed consideration of appeals of other cases addressing this issue but at some point can be expected to resolve the split among federal courts.