Wednesday, May 25, 2022



WASHINGTON — The Supreme Court on Monday issued its most sweeping decision ever to protect LGBTQ people from discrimination, finding that a federal ban on sex discrimination in workplaces also protects employees on the basis of sexual orientation and gender identity.

Despite same-sex couples winning the right to marry in 2015, firing workers for being LGBTQ has remained legal across much of the United States, since federal law does not specifically name sexual orientation or gender identity as protected classes, unlike race or national origin. In a 6-3 decision, the court held that a federal law prohibiting workplace discrimination based on “sex” — Title VII of the Civil Rights Act of 1964 — applied to cases involving LGBTQ workers.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” Justice Neil Gorsuch — one of President Donald Trump’s appointees to the higher court — wrote in the majority opinion. “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.”

Monday’s decision will have a ripple effect across the nation, particularly by banning workplace bias in dozens of the country’s Republican-controlled states, which never enacted state laws banning anti-LGBTQ discrimination.

Title VII states that it’s unlawful for employers to refuse to hire someone, to fire a worker, or to otherwise discriminate based on “race, color, religion, sex, or national origin.” Gorsuch wrote that Congress may not have been thinking about sexual orientation and gender identity discrimination when lawmakers included the term “sex” in that part of the Civil Rights Act, “[b]ut the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

“The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Gorsuch wrote.

Chief Justice John Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined Gorsuch’s decision. Justices Brett Kavanaugh — Trump’s other appointee to the court — Samuel Alito Jr., and Clarence Thomas dissented.

The Justice Department under Trump had argued against interpreting Title VII to apply to workplace discrimination based on sexual orientation and gender identity, reversing course from the Obama administration. Trump has touted the confirmation of Gorsuch and Kavanaugh as a political win and means of advancing the broader conservative agenda — which has included rolling back legal protections for LGBTQ people — but Monday’s decision highlights the fact that once judges and justices are confirmed to the federal bench, they enjoy lifetime tenure and are not beholden to the positions of the president who appointed them.

The decision comes less than a week after the Trump administration announced it was adopting a rule that would allow health providers to deny services to transgender people.

Gorsuch rejected arguments by the employers that as long as they treated all LGBTQ employees the same, it couldn’t be “sex”-based discrimination — the employers had argued, for instance, that they could have a blanket policy of discriminating against all LGBTQ people as long as they treated men and women the same. But Gorsuch wrote that discrimination based on sexual orientation was ultimately about penalizing a man for being attracted to men and a woman for being attracted to women, and that gender identity discrimination was about punishing based on the sex they were identified with at birth.

“Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex,” Gorsuch wrote.

The Supreme Court’s decision on Monday stems from three cases that debate Title VII’s meaning — turning on the question of whether whether anti-LGBTQ discrimination is based in a person’s “sex.”

The first involves a woman fired from a Michigan funeral home for coming out as transgender. Aimee Stephens — who died May 12 — had presented as a man when she started her job in 2007 at R.G. & G.R. Harris Funeral Homes in Michigan. Six years later, after Stephens announced plans to wear women’s clothes, the owner, Thomas Rost, fired her.

In siding with Stephens, a 49-page opinionled by Judge Karen Nelson Moore of the US Court of Appeals for the 6th Circuit found she raised a valid Title VII complaint: “The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex.”

One of the two gay rights case before the Supreme Court is Bostock v. Clayton County, Georgia, in which Gerald Bostock claims he was fired by the county for being gay. His Title VII claim had been dismissed by lower courts.

Bostock’s case was consolidated with a lawsuit filed by Donald Zarda, who sued his employer, Altitude Express, alleging the skydiving company terminated him for his sexual orientation in violation of Title VII. With support from the Equal Employment Opportunity Commission, a federal agency that handles civil rights disputes, Zarda prevailed at the 2nd Circuit Court of Appeals. The court found that a gay man wouldn’t be targeted if he were instead a woman dating a man; thus he faced discrimination because of his sex.

“A woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women,” the majority wrote in an opinion led by Judge Robert Katzmann. “We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”

Like other courts in Title VII cases, judges based pro-LGBTQ decisions in part on the landmark Supreme Court case Price Waterhouse v. Hopkins — a 1989 dispute in which a cisgender female employee claimed she wasn’t promoted because she didn’t appear feminine enough; the Supreme Court found that Title VII’s ban on sex discrimination also bans sex stereotyping in the workplace. Another key Supreme Court case cited by lower courts is Oncale v. Sundowner Offshore Services, Inc., a 1998 case in which the Supreme Court found that Title VII’s ban on sex discrimination also prohibited workplace harassment in the case of a man who was perceived to be gay.

But in arguments last year, the Justice Department told the Supreme Court those older cases did not apply and sex discrimination cannot be construed broadly to include LGBTQ workers because, as a general matter, it is legal for sex-segregated rules to exist, such as restrooms and dress codes.

The issue of restrooms has been particularly thorny. During oral arguments in October 2018, several justices wondered what consequences ruling for Stephens would have on using bathrooms — such as transgender women using bathrooms that match their gender identity — as well as implications for women’s sports. ACLU national legal director David Cole, who argued on behalf of transgender workers, said a bathroom or sports policy was not an immediate issue before the court. But he said forcing transgender people to use facilities that clash with their gender identity would “impose a discriminatory injury.”

The Trump administration disagreed, arguing that sex discrimination occurs only when “similarly situated” individuals are treated differently — not comparing a gay or transgender person to a straight or cisgender person.

Gorsuch dismissed the bathroom issue entirely, writing that the fight over Title VII was about workplace discrimination and not those other issues — “we do not purport to address bathrooms, locker rooms, or anything else of the kind.”

For gay workers, the Justice Department said, “An employer who discriminates against employees in same-sex relationships thus does not violate Title VII as long as it treats men in same-sex relationships the same as women in same-sex relationships.”

Lawyers for Clayton County in the Bostock case added that Congress had not intended to protect LGBTQ people under Title VII, saying that “the original public meaning of the term ‘sex’ at the time Congress adopted Title VII in 1964 was the trait of being male or female, not sexual orientation or homosexuality.”

The case for Stephens was brought in the name of Equal Employment Opportunity Commission, a largely autonomous federal agency that championed her cause. But once the case reached the Supreme Court, per typical procedure, the solicitor general at the Justice Department took over to represent the government. In Stephens’ case, this meant government lawyers now argued it was legal to fire her — taking the opposite position as the EEOC even though it is representing the agency. LGBTQ advocacy lawyers stepped in to make her case.
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