Supreme Court says gay, transgender workers are protected by federal law forbidding discrimination on the basis of sex

From The Washington Post, June 15, 2020

by Robert Barnes

Daniel Goldman of Arlington, Va., holds the transgender flag at a demonstration outside the Supreme Court on Oct. 8.
Daniel Goldman of Arlington, Va., holds the transgender flag at a demonstration outside the Supreme Court on Oct. 8. (Michael S. Williamson/The Washington Post)

The Supreme Court ruled Monday that federal anti-discrimination laws protect gay and transgender employees, a major gay rights ruling written by one of the court’s most conservative justices.

Justice Neil M. Gorsuch and Chief Justice John G. Roberts Jr. joined the court’s liberals in the 6 to 3 ruling. They said Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of sex,” includes LGBTQ employees.

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear,” Gorsuch wrote. “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.”

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Gorsuch and Roberts were joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

“This is a huge victory for LGBTQ equality,” said James Esseks of the American Civil Liberties Union. He added:

“The Supreme Court’s clarification that it’s unlawful to fire people because they’re LGBTQ is the result of decades of advocates fighting for our rights. The court has caught up to the majority of our country, which already knows that discriminating against LGBTQ people is both unfair and against the law.”

For 50 years, courts interpreted Title VII’s prohibition on discrimination because of sex to mean only that women could not be treated worse than men, and vice versa, not that discrimination on the basis of sex included LGBTQ people.

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The dissenting justices — Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh — agreed with that view.

“If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation — not to mention gender identity, a concept that was essentially unknown at the time,” wrote Alito, who was joined by Thomas in his dissent.

The dissenters said their colleagues were amending the law, not interpreting it.

“The court has previously stated, and I fully agree, that gay and lesbian Americans ‘cannot be treated as social outcasts or as inferior in dignity and worth,’ ” Kavanaugh wrote, quoting a previous case.

But he added: “Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.”

Gorsuch, President Trump’s first nominee to the court, said that was wrong. The text of the law makes clear that gay and transgender workers who are fired are fired because of sex, he wrote.

“It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Gorsuch wrote. “Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

It was exactly the message that lawyers for the gay and transgender employees had made, and was striking that it came from one of the court’s most conservative justices.

Gorsuch acknowledged that lawmakers in 1964 were likely not protecting gay and transgender workers. But the words of the statute they wrote do that, he said.

“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,” he wrote. “But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”

He said how the decision might affect religious employers were for future cases, since it was not an issue in the cases before the court.

The court combined two cases to consider whether gay workers are protected under the law. Gerald Bostock claimed that he was fired from his job as a social worker in Clayton County, Ga., after he became more open about being gay, including joining a gay softball league. Donald Zarda said he was fired as a skydiving instructor after joking with a female client to whom he was strapped for a tandem dive that he was gay. (Zarda died in 2014.)

The transgender case was brought by Aimee Stephens, who worked for years at a Michigan funeral home before being fired after informing the owners and colleagues of her gender transition. Stephens died of kidney failure in May, after seeing her case argued at the Supreme Court in October.

Before her death, Stephens prepared a statement through the American Civil Liberties Union in anticipation of a possible ruling in her favor.

“Firing me because I’m transgender was discrimination, plain and simple, and I am glad the court recognized that what happened to me is wrong and illegal,” she said. “I am thankful that the court said my transgender siblings and I have a place in our laws — it made me feel safer and more included in society.”

The cases were the first the court heard since the retirement of Justice Anthony M. Kennedy. He had written the majority opinion in all of the court’s major cases that advanced gay rights, including the 2015 decision that said gay couples had the constitutional right to marry.

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The issue was one of the most consequential of the term. More than 70 friend-of-the-court briefs were filed, dividing states, religious orders and members of Congress. More than 200 of the nation’s largest employers are supporting the workers.

The Trump administration sided with the employers, a position that put it at odds with the Equal Employment Opportunity Commission, which decided in 2015 that gay and transgender people were federally protected.

Treating a man who is attracted to men differently from a woman who is attracted to men is discrimination, the EEOC reasoned.

The commission also looked at a 1989 Supreme Court decision that said federal law protected against discrimination based on stereotypes; the court found for a woman who had not been promoted because her employers found her too aggressive and her manner of dress not feminine enough.

That is analogous to discriminating against a transgender person for not conforming to norms expected of a gender, the commission said. Discrimination because of sexual orientation is the same thing, the EEOC said, because it relies on stereotypes about to whom men and women should be attracted.

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Most appellate courts had come to agree with the EEOC, even when they had not done so in the past.

The full U.S. Court of Appeals for the 2nd Circuit ruled for Zarda, and said its contrary past decisions on the issue were wrong.

Chief Judge Robert A. Katzmann wrote that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.” (Zarda’s case is being carried forward by his sister and partner.)

The U.S. Court of Appeals for the 6th Circuit came to a similar conclusion in Stephens’s case. The panel found it “analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.”

But in Bostock’s case, the U.S. Court of Appeals for the 11th Circuit went the other way, ruling for Clayton County, a suburb south of Atlanta, that Title VII did not protect on the basis of sexual orientation.

Gay rights leaders say “married on Sunday, fired on Monday” is a possibility in more than half of the United States, where there is no specific protection for gay or transgender workers. The states that prohibit discrimination are not uniform — some protect only gender identity or transgender status, and some differentiate between public and private employment.

Since the case was argued, Virginia became the most recent state to extend protection on its own.

The sexual orientation cases are Bostock v. Clayton County, Ga. and Altitude Express v. Zarda. The other case is R.G. & G.R. Harris Funeral Homes v. EEOC.

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