The U.S. Supreme Court ruled 6-3 that LGBTQ people are protected under federal employment discrimination laws, specifically Title VII of the Civil Rights Act of 1964, in cases involving whether someone can be fired from their job for being gay or transgender.
Neil Gorsuch and Chief Justice John Roberts joined Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor to form the majority ruling in Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. Gorsuch wrote the court’s opinion. Clarence Thomas, Samuel Alito, and Brett Kavanaugh were the dissenting justices.
Wrote Gorsuch: “Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. 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.”
Altitude Express v. Zarda from the U.S. Court of Appeals for the Second Circuit, and Bostock v. Clayton County from the Eleventh Circuit were argued together and dealt with sexual orientation. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission dealt with transgender rights. The Court ruled on all the cases together. They had been expected to rule separately.
Read the opinion:
The Washington Post reports: “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 individuals were federally protected.”
SCOTUSblog offered background on Zarda and Bostock before arguments in October: “Zarda (who died in 2014, and who is represented in the Supreme Court by the executors of his estate) was a skydiving instructor who sometimes told female clients that he was gay to make them feel more comfortable when they were strapped to him for a jump. Gerald Bostock received good performance reviews while working as the child-welfare-services coordinator for Clayton County, Georgia, for over a decade. Both men were fired – according to them, because they were gay. Zarda and Bostock went to federal court in New York and Georgia, respectively, where they argued that firing them because they were gay violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of sex.” The U.S. Court of Appeals for the 11th Circuit ruled that Bostock’s case could not go forward, because Title VII does not apply to discrimination based on sexual orientation. But the U.S. Court of Appeals for the 2nd Circuit reached the opposite conclusion: It reasoned that discrimination based on sexual orientation is a ‘subset of sex discrimination.'”
SCOTUSblog added: “In their briefs in the Supreme Court, Bostock and Zarda argue that the text of Title VII clearly applies to discrimination based on sexual orientation: Someone who is fired or otherwise the victim of discrimination because of his sexual orientation – in their cases, for being men who are attracted to men – is undoubtedly a victim of discrimination because of his sex. After all, they reason, a woman would not have been fired for being attracted to men. Moreover, Title VII also bars employers from discriminating against individuals who do not conform to conventional gender stereotypes such as the idea that women should be attracted to men and men should be attracted to women.”
The ACLU’s background on R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission: “Aimee Stephens had worked for nearly six years as a funeral director at R.G. and G.R. Harris Funeral Homes when she informed the funeral home’s owner that she is a transgender woman. Her employer fired her, and the EEOC sued on her behalf. The Sixth Circuit Court of Appeals ruled that Aimee’s employer engaged in unlawful sex discrimination when it fired her because she’s transgender. R.G. & G.R. Harris Funeral Homes is asking the Supreme Court to review the case. The ACLU represents Aimee Stephens.”
More background on the cases HERE. Read the argument transcript of the two consolidated cases, Bostock v. Clayton County and Altitude Express v. Zarda, HERE. The transcript of the transgender case Harris Funeral Homes v. EEOC can be read HERE.
Last October, The Washington Post reported: “The issue for the court is the reach of Title VII of the Civil Rights Act of 1964, which, besides protecting against workplace discrimination because of race, also prohibits discrimination ‘because of sex.’ For 50 years, courts read that 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 individuals. The Trump administration says that is what the Supreme Court should find as well.”
Also last October, The Washington Blade‘s Chris Johnson reported that Justice Neil Gorsuch emerged as a potential ally for LGBTQ workers based on his questioning: “Gorsuch, a Trump-appointed justice who considered himself a textualist, asked many questions suggesting he’s at least considering the idea of anti-LGBT discrimination is a form of sex discrimination, thus prohibited under Title VII of the Civil Rights Act of 1964. … Throughout the arguments, Gorsuch made several inquiries on whether the concept of sex is inseparable from anti-LGBT discrimination. At one point, Gorsuch asked, “Isn’t sex also at play here?” and gave an example of a employer firing a man for being attracted to another man as an example of sex discrimination. … To be sure, Gorsuch also asked questions about whether employers could keep sex-segregated bathrooms under LGBT-inclusive Title VII.”
Bloomberg reported on arguments last October: “The two-hour session Tuesday suggested that LGBT advocates had at least a chance to win the vote of conservative Justice Neil Gorsuch, along with the court’s four liberal members. Gorsuch sent mixed signals, calling the case ‘really close.’ … Trump’s other appointee, Brett Kavanaugh, said very little and didn’t tip his hand. … Another conservative justice, Samuel Alito, was skeptical of the workers’ claims, at one point telling the lawyer for two gay men that ‘your whole argument collapses.’ … Chief Justice John Roberts expressed concern about the impact on religious organizations if the high court were to side with LGBT workers. He was one of several justices who asked what the cases could mean for single-sex bathrooms.”