U.S. Supreme Court

In Gorsuch opinion, SCOTUS rules gay and transgender workers are protected by Title VII

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The U.S. Supreme Court ruled Monday that the ban on sex discrimination in Title VII of the Civil Rights Act protects gay and transgender workers.

Justice Neil M. Gorsuch wrote the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender,” Gorsuch wrote. “The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

“Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

ABA President Judy Perry Martinez praised the decision in a statement Monday.

“The American Bar Association celebrates today’s landmark U.S. Supreme Court decision vindicating the civil rights of transgender workers, and lesbians, gay men, and bisexual workers,” Martinez said. In its 6-3 decision, “the court affirmed the right to work in this country free of discrimination because of gender identity or sexuality, a right the ABA defended in an amicus brief it filed in the case.”

The decision was issued in the combined cases Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission.

In Bostock, child welfare advocate Gerald Bostock was fired after he began participating in a gay recreational softball league, resulting in disparaging comments from influential members of the community.

In Altitude Express, skydiving instructor Donald Zarda was fired days after he mentioned that he was gay. Zarda later died in a skydiving incident.

In R.G. & G.R. Harris Funeral Homes, Aimee Stephens was fired after she told her employer that she planned to live and work full time as a woman. Stephens died in May at age 59 after suffering from kidney disease.

The estates of Zarda and Stephens continued the cases.

Gorsuch said the “ordinary public meaning” of Title VII at the time of its adoption results in “a straightforward rule” that an employer violates Title VII when it intentionally fires an individual based in part on sex.

Gorsuch also cited the 1989 Supreme Court decision Price Waterhouse v. Hopkins, which held that Title’s VII’s ban on sex discrimination protects those who don’t conform to gender norms.

Gorsuch provided some examples of how Title VII and the Supreme Court precedent apply in cases of gay and transgender employees.

If a male employee and a female employee are both attracted to men but only the male employee is fired because of that attraction, the employer intentionally singles out the male employee in part because of the employee’s sex, Gorusch said.

If a transgender employee and a female employee both identify as female and only the transgender employee is fired, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth, Gorsuch said.

It isn’t a defense for the employer to say it fires all male and female employees who are homosexual or transgender, Gorsuch said.

“So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same,” Gorsuch wrote.

Justice Samuel A. Alito Jr. dissented in an opinion joined by Justice Clarence Thomas.

“There is only one word for what the court has done today: legislation. The document that the court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive,” Alito wrote.

Justice Brett M. Kavanaugh argued in a separate dissent that there are good policy arguments to amend Title VII to protect discrimination on the basis of sexual orientation, but the question is for Congress to decide.

“I have the greatest, and unyielding, respect for my colleagues and for their good faith,” Kavanaugh wrote. “But when this court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference. The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome.”

Hat tip to SCOTUSblog, which had early coverage of the decision.

See also:

ABAJournal.com: “ABA amicus brief supports LGBTQ employees in Title VII discrimination cases”

ABAJournal.com: “EEOC doesn’t sign US brief telling Supreme Court that transgender discrimination is legal”

ABA Journal: “Supreme Court taking on big issues that have been percolating for a while”

ABAJournal.com: “Chemerinsky: It’s likely to be an amazing year in the Supreme Court”

Updated June 15 at 2:45 p.m. to include the statement by the ABA president.

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