Breaking: U.S. Supreme Court Holds Gay and Transgender Workers Protected From Discrimination Under Title VII

This morning, the U.S. Supreme Court issued what many would call a landmark 6 - 3 decision:  Under Title VII of the Civil Rights Act of 1964 (“Title VII”), gay and transgender workers cannot be terminated because of their sexual orientation or gender identity.

Prior to this ruling, Title VII prohibited discrimination against a worker on the basis of their sex, race, color, national origin, and religion.  (This case sought to have gay and transgender workers fall under the scope of “sex” in regard to Title VII protections.)  With the Supreme Court’s ruling in Bostock v. Clayton County, Georgia earlier this morning, LGBTQ workers will now be a covered class under Title VII.

Writing the majority opinion for the Court, Justice Neil Gorsuch wrote “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s she when deciding to fire that employee.  We do not hesitate to recognize today a necessary consequence of that legislative choice:  An employer who fires an individual merely for being gay or transgender defies the law.”  Perhaps sensing potential criticisms of the Court reading a new covered class into the language of Title VII, Gorsuch went on to write “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 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.  Only the written word is the law, and all persons are entitled to its benefit.”

In his dissent, Justice Samuel Alito argued the majority opinion went beyond the scope of Title VII by including gay and transgender workers under the scope of “sex” as a protected class.  In a rather pointed dissent, Justice Alito wrote there “is only one word for what the Court has done today:  legislation.”  Justice Alito noted that the U.S. House of Representatives had approved legislation last year that would clarify that Title VII’s ban on sex discrimination included discrimination based on sexual orientation and gender identity.  (That bill stalled out in the Senate.)  Justice Alito reiterated his belief that the real question before the Court was “not whether discrimination because of sexual orientation or gender identity should be outlawed.  The question is whether Congress did that in 1964.  It indisputably did not.”

In another dissent, Justice Brett Kavanaugh also suggested that the majority opinion went too far in broadening the scope of Title VII, noting “the responsibility to amend Title VII elongated to Congress and the President in the legislative process, not to this Court.”  Justice Kavanaugh went on to write that it was the job of Congress to broaden the scope of Title VII, not the Court’s, saying “Because judges interpret the law as written, not as they might wish it were written.”  One interesting part of Justice Kavanaugh’s dissent that I want to note was his acknowledgment of the long, hard fought slog that LGBTQ workers have gone through to achieve equal treatment.  While Justice Kavanaugh applauded their relentless work, he did note that he believed it was the role of Congress, rather than the Court, to extend the protections of Title VII.

Some critics have been quick to rebuke the majority opinion, apparently surprised that traditionally conservative leaning Justices Gorsuch and Chief Justice John Roberts sided with the more liberal side of the bench (Justices Ruth Bader Ginsberg, Sotomayor, Kagan, and Breyer.)  Regardless of where some might stand on the issue, this decision marks one of the Court’s defining cases of this term (and perhaps one of the Court’s most defining cases in recent memory.)

For a copy of the Court’s 172 page opinion:  https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf