The U.S. Supreme Court ruled today that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, bans employment discrimination based on sexual orientation and gender identity.
The ruling came in two consolidated cases involving gay men who were fired from their jobs — Bostock v. Clayton County and Zarda v. Altitude Express — and one involving a transgender woman who lost her job, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. The court heard oral arguments in the cases last October.
The 6-3 ruling was written by Neil Gorsuch, Donald Trump's first Supreme Court appointee. He was joined by another conservative, Chief Justice John Roberts, and the court's four liberals — Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer. Dissenting were conservatives Samuel Alito, Brett Kavanaugh, and Clarence Thomas.
"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," Gorsuch wrote, adding, "Only the written word is the law, and all persons are entitled to its benefit."
The cases involved Gerald Bostock, a social worker in Georgia who was fired after joining a gay softball league; Donald Zarda, a skydiving instructor who was dismissed by a New York-based company after telling a client he was gay; and Aimee Stephens, a Michigan funeral director who lost her job after she came out as transgender and told her employer she would begin presenting as female at work. All three filed lawsuits. Zarda and Stephens are both now deceased.
In both Bostock’s and Zarda’s cases, their employers said they were fired for reasons other than being gay. In Stephens’s, the funeral home operator said that for her to wear women’s clothing would violate its dress code; an executive of the company cited religious beliefs about the immutability of gender as a reason for requiring her to continue wearing men’s attire at work. In all three cases, the employers contended they had not violated Title VII.
The cases ended up at the Supreme Court after federal appeals courts delivered conflicting rulings. In Bostock’s case, the U.S. Court of Appeals for the Eleventh Circuit said Title VII doesn’t extend to sexual orientation discrimination. In Zarda’s, the Second Circuit said it does. In Stephens’s, the Sixth Circuit said Title VII covers gender identity discrimination.
Whether or not Title VII applies to discrimination based on sexual orientation and gender identity has been a point of contention in courts and among politicians for several years. President Barack Obama’s administration took the position that the law does cover these types of discrimination, while the Trump administration says it does not and filed briefs in this cases arguing to that effect. The Equality Act, which is pending in Congress, would amend the Civil Rights Act to make clear that these types of discrimination are banned on a national basis. It would also cover venues other than employment, such as housing, credit, and public accommodations.
Gorsuch allowed that the members of Congress who passed the Civil Rights Act may not have intended this interpretation of it. But he said the law's text demands it, using what is usually a conservative argument that the text supersedes any other considerations. "Today,we must decide whether an employer can fire someone simply for being homosexual or transgender," he 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 haveanticipated 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. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest."
"It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex," he added.
In his dissent, though, Alito wrote, "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." Because the law has never been amended to ban discrimination based on sexual orientation or gender identity, "Title VII’s prohibition of discrimination because of 'sex' still means what it has always meant."
"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," he continued.
"The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated –– the theory that courts should 'update' old statutes so that they better reflect the current values of society."
Thomas joined Alito's dissent, and Kavanaugh wrote his own, saying the court was essentially legislating, taking up a job the Constitution's framers had expressly given to Congress and the president. "The policy arguments for amending Title VII are very weighty. 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,'” he wrote, quoting the court's 2018 majority opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission. "But we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise 'neither Force nor Will, but merely judgment.' ... Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result. ... Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation."
Read the full opinion and the dissents here.
Story developing …