UPDATE: Supreme Court says gay, transgender workers protected by federal discrimination law

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 Gorsuch and Chief Justice John 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.”

Gorsuch and Roberts were joined by Justices Ruth Bader Ginsburg, Stephen 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.

The dissenting justices—Clarence Thomas, Samuel Alito Jr. and Brett 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 Donald 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 probably 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 was for future cases, as 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.

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.

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 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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10 thoughts on “UPDATE: Supreme Court says gay, transgender workers protected by federal discrimination law

  1. The question must be asked; Where is the protections for religious organizations that by conscience object to Cultural Secularism Idealogies?

    If an employee agrees as a condition of employment to sign an agreement/contract that they will adhere to the Biblical beliefs and standards when it comes to sexuality etc. and decides to go in an opposite direction in violation of the agreement, then what? There needs to be safeties built into the laws or else there will be severe conflicts and oppressing discrimination for example cast upon a church when a church objects to an employee changing genders that the new gender would cause compromising situations similar of a man being in the same restroom as girls.

    What a sick gender dysphoric world we live in!!!

    1. I think courts and laypeople can readily distinguish between ordained clergy (who are not typical employees) and other parish/school employees of religious organizations. At the extreme, I don’t think it’s good public policy to allow, say, the Catholic Church to fire a gay, lesbian, or transgender custodian on the basis of gender or sexual orientation. But where it gets sticky is teachers and counselors in religious schools, and that really is one for the courts also.

    2. Churches can exempt themselves from following this law by turning away federal funds, no?

    3. Darrell, at least you are consistent in your homophobic views. Had you read the article, you would have seen that Gorsuch anticipates a possible different ruling for religious organizations. ‘He said how the decision might affect religious employers was for future cases, as it was not an issue in the cases before the court’.

      Most places have solved the “bathroom riddle” for trans people by utilizing single person bathrooms since you seem to be so worried about a trans person attacking your daughter. Please cite some legitimate statistics about men transitioning to women being more likely than others of sexually assault women of any age. The fact is, women are MUCH MORE likely to be assaulted by an opposite sex parent, aunt/ uncle, family “friend”, babysitter, or men with whom they are on a date. Same with young boys except you can add their priest to the list.

      Your final comment cements your bigotry: “a sick gender dysphoric world”. Wake up and stop tagging different people as the bogey man. Educate yourself. It is a real thing:




    4. Joe B., I see where you are headed with your comment. Unfortunately, even subjecting churches to income and property taxes (or, at the very least, end the indirect public subsidy of making contributions to religious organizations tax deductible), does not solve the problem. Imagine the 95% of for-profit organizations that are not accepting federal funds saying, “Well, we don’t accept federal money so we are free to fire anyone who is ________ (Black, Jewish, Asian, LGBQT+, etc.). Not fair to any of them to allow such discrimination.

    5. Ed – seems likely that churches will eventually be allowed to declare that everyone they employ is a minister and be able to discriminate thusly. Which is a shame, as some of the best teachers in my private Catholic school days were gay and everyone knew it.

      But I don’t think that any religious school that takes voucher money should be able to discriminate. If they want to claim everyone is a minister, that’s fine I guess, but no government money for you.

      What will be more interesting, as you say, are the Hobby Lobby’s and Chic-Fil-A’s of the world and how they will spend their money on this issue.

  2. On its face this is a perfectly legitimate argument but there is a segment of people that WILL use this decision to attack churches and other religious organizations. Its already been done almost everywhere. The ruling is too vague as it is written, as has often been the case in recent decisions handed down by the courts. If the rulings treating churches differently from other “essential” places, during the COVID 19 pandemic, are any clue as to how this latest ruling is enforced, then it can be assumed that this latest ruling will be used to compel churches and religious organizations to submit to whatever government or secular group thinks is “fair or equitable.” Just as the comment concerning the 1964 Civil Rights Act states that practically no one at that time would have connected the protections associated with that act to protect anything other than what was actually stated. This latest “ruling” is, however, a misrepresentation of what was originally implied. On part of this ruling is in keeping with a very dangerous group of people that see the Constitution as a “living” document. Of course what this really means is that no law can be assumed to mean what its original context was. Laws, under this concept, are never really permanent, only what the “prevailing” sentiment is. A law that can be changed or “redefined” by changing the context in order to “bring it up to date with MODERN ideas or concepts, is not a law at all. Its merely a “suggestion.” While laws have never been perfect nor do they solve all problems, their existence as referenced within the time and context in which they were created are critical. They have protected and helped more people than they have harmed or not protected. The Civil Rights Act of 1964 was something that was legislated in Congress and Signed into law by the sitting President. What a redefinition of this Act does is an “end run” around the will of the people and the legislative process. In other words, it is legislation by the courts which is yet another un-Constitutional trend in our court system.
    Everyone deserves equal protection under the law, without exception; however, when “protection” is used to punish or destroy those that don’t agree with your point of view it isn’t protection, its an absurd distortion of everything that was ever written or intended by founders of this country.
    I often used to wonder when I was a college student, studying 20th century history, what it would have been like to be alive and present during the enormous struggles that went on during the 1920s and 30s in Europe. Well, the people in this country might get that chance at the rate we are going. Over the last 6 months we have been watching, like spectators at a play or movie, knowing where the tragic plot seems to be moving, and not knowing what to do. We know, if it keeps going the way it seems to be progressing, it will end in an enormous train wreck. We can see that the bridge is out up ahead and we want to yell or something but the train only seems to pick up speed. Lets hope cooler heads and more intelligent and caring people can stop this before it is too late.

    1. Oh, Neil D., clutch your pearls! Very few people are out to persecute the churches. This decision was supported by two conservative justices, including Gorsuch, who anticipates a possibly different ruling for religious organizations. ‘He said how the decision might affect religious employers was for future cases, as it was not an issue in the cases before the court’.

    2. The problem with the belief that religious people or organizations should be exempt from generally applicable laws protecting LGBTQ persons is that courts and religious people and organizations routinely used their religious beliefs to argue for racial discrimination. The trial court in Loving v. Virginia used the Bible to defend anti-miscegenation laws, saying that God put black people and white people on different continents and thus wanted them to remain unmixed. Fortunately the Supreme Court saw through that veil and defended the right to marry across races. But arguing that “God made Adam and Eve, not Adam and Steve” is a variation on the same theme. Almost no Americans would support racial discrimination on the basis of religious freedom; the same should be true for discrimination against LGBTQ persons.

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