Gay rights advocates hailedKennedy's legacy after he announced his resignation Wednesday fromthe high court. (Photo: Diego M. Radzinschi / NLJ)

Justice Anthony Kennedy helped advance LGBT equality during his three decades on thebench—but now he's leaving just as the U.S.Supreme Court is poised to consider the next front in that fight:protections for gay and transgender workers.

The Supreme Court could soon face cases that grapple withwhether federal civil rights protections under Title VII ofthe Civil Rights Act extend to sexual orientation, a question thathas divided appeals courts and government agencies.

Gay rights advocates hailed Kennedy's legacy after he announcedhis resignation Wednesday from the high court, pointing to opinionshe authored that legalized gay marriage and struck down lawscriminalizing homosexuality.

Tension and uncertainty surrounding workplace protections forLGBT workers seems likely to persist, particularly given the Trumpadministration is expected to choose a more conservativereplacement for Kennedy's seat. Despite progress in the courts andfrom the business community, sweeping federal protections againstdiscrimination for gay and lesbian workers remains unclear.

Seyfarth Shaw partner Sam Schwartz-Fenwick said there will bemore uncertainty surrounding questions of LGBT protections, buteven if Kennedy were still on the court, it wasn't clear how thejustices might interpret Title VII's anti-discriminationprotections.

Schwartz-Fenwick noted that the late Justice Antonin Scalia, aconservative stalwart, authored the opinion in the 1998 caseOncale v. Sundowner OffshoreServices, which said men and women shouldbe protected from sexual harassment.

“It's not a right versus left, conservative versus liberalissue,” Schwartz-Fenwick said. “It will be about thespecific question that is presented.”

Acknowledging Kennedy's role in advancing LGBT equality, LambdaLegal CEO Rachel Tiven said the justice's departure leavesunanswered how far equal-rights protections might be extended.Attorneys with Lambda Legal are playing a key role in the courtcases that are making their way through the appeals courtssurrounding Title VII protections.

“We are shocked and saddened that a justice who was once thedefender of dignity for LGBT people and our families on the courtwould choose this moment to hang up his robe and give the Trumpadministration the opportunity to further derailanti-discrimination laws and undermine the rule of law,” Tivensaid.

A recent report from the Human Rights CampaignFoundation found that nearly half of gay andtransgender workers remain closeted at work, a statistic that hasremained largely unchanged in the last decade. The group tracksLGBT policies at major companies across the country, and has founda record number of companies are adopting progressive policies forgay and transgender workers.

The U.S. Equal Employment Opportunity Commission and advocatesin recent years have pushed for a broaderinterpretation of Title VII to include sexualorientation, as well as gender identity. The agency, tasked withenforcing those civil rights laws, have tackled thousands of caseson behalf of LGBT workers since it adopted a new position in 2013.The Trump administration's Justice Department pushed back againstthe interpretation, creating a rare conflictbetween agencies.

Two petitions arrived in recent weeks—and they could be acted onby the time the new term starts in the fall.

One of the petitions,Altitude Express v. Zarda, arrived from the U.S. Court ofAppeals for the Second Circuit, which said in February that TitleVII should include sexual orientation. The Second Circuit alignedwith the Seventh Circuit's decision last year in Hively v. IvyTech Community College. Another LGBT workplace case,Bostock v. Clayton County, Georgia, is also pending at theSupreme Court.

The attorneys in a Sixth Circuit case involving similar issues,EEOC v. R.G. & G.R. Harris Funeral Home, recently asked the SupremeCourt for an extension of time to file a petition for review. Thecase tees up questions concerning whether gender identity should beprotected under Title VII. At least five appeals courts have saidgender identity should be protected under federal civil rights law.Trump's Justice Department last year reversed guidance that issueand argued transgender workers should be protected.

David Lopez, a Washington-based Outten & Golden attorney andsoon-to-be dean at Rutgers LawSchool, said the business community has pushedfor broader protections for gay workers. He predicted thatarguments in support of a broad interpretation of Title VII couldhave some resonance at the post-Kennedy Supreme Court.

“I'm still optimistic, but I would have been more optimistic hadKennedy been on the court.He was always the margin of difference.Social issues is where there was some hope in him for moreprogressive people.” Lopez said. He added, “It won't be a unanimousdecision. You will have different sides of the coin. I still thinkit's possible that the Supreme Court will follow what the Seventhand Second have done. Those circuits have Democratic and Republicanappointees.”

Sharon Stiller, partner and director of the employment lawpractice at Abrams, Fensterman, Fensterman, Eisman, Formato,Ferrara, Wolf & Carone, said liberal justices on the SupremeCourt might not be eager to take up the pending petitions.

Stiller acknowledged there is gray area between the liberal andconservative lines on workplace-rights issues. Courts haverecognized a changing society, but a strict interpretation of TitleVII could reject extending broader workplace rights to gay, lesbianand transgender employees. There is a dearth of legislative historyon sex discrimination written into Title VII about intention, shesaid.

“There is a lot to be argued on either side,” Stiller said. “Itdepends on your historical analysis, philosophical analysis and theinterpretation of various rights. There is more at issue than justanalyzing, 'Should we be protecting the rights of persons based ontheir sexual orientation?' It's much more an interpretationquestion.”